Snowden warns of surveillance in a democracy

Jessica Crawford

Whistleblower Edward Snowden talks from Russia at the Hawaii Convention Center.

When the moment came, attorney Ben Wizner and Aviam Soifer, dean of the UH School of Law, took to the stage in the Hawaii Convention Center. Then, Edward Snowden was “beamed” into the ballroom and onto a large overhead screen via (somewhat ironically) Google Hangouts.

“And there he is,” Soifer said.

Snowden waved to audience members. They gave him a standing ovation.

“They’re standing, Ed,” Soifer said. “Eight-hundred people are standing.”

Snowden appeared touched by the response. “Mahalo,” he said. “You can’t tell, but, you actually clapped so hard that it shook my laptop.”

This was the scene at the Davis Levin First Amendment conference Feb. 14. on “Can Democracy Survive Secrecy?” The sold-out event drew 800 people from all walks of life—students, professors, members of law enforcement, military and the FBI—to listen to Snowden speak via video link from Moscow, Russia.

Snowden talked about how citizens can protect their data through rapidly evolving technology and software programs, such as encryption, and free apps such as TextSecure and RedPhone.

Snowden and Wizner also discussed the changes they’ve seen since June 2013, when the revelations regarding mass surveillance began.

Snowden also shared a regret he’s carried since becoming a whistleblower: He wishes he had alerted the public sooner.

“I do think if I had come forward a bit sooner, we would be in a better position to roll these (programs) back.”

Prior to Snowden’s appearance, the conference opened with a screening of the Oscar-winning documentary, “Citizenfour.”

The film chronicles the first week after journalist Glenn Greenwald and filmmaker Laura Poitras fly to Hong Kong to meet Snowden and take possession of a massive collection of classified documents that detail the extent of the U.S. government’s massive surveillance programs.

The film offers an intimate look at the famous NSA whistleblower and gives a glimpse into his motivations: to inform the public about the government’s illegal spying programs and to help spur a debate about them.

The film was interrupted twice due to mechanical issues and a power outage from a weekend storm, with some joking that NSA had a “hand” in the film’s interruptions.

Following the film, Mark Davis, one of the founders of the Davis Levin First Amendment Conference, spoke briefly before welcoming Wizner, Snowden’s ACLU legal counsel, and Soifer to participate in a question-and-answer session.


Here are some highlights:

Q: Has Congress reacted, and if so, in what way? Have you seen some progress?

Snowden: I think when we look at what’s happened with Congress, there’s been a ‘sea change’. The first and most important is awareness and accountability. When we rewind the clock back to 2013, before anybody knew about this, the only members of Congress who understood what was going on were a very few select members in the House and the Senate Intelligence Committees.

It’s a radical improvement, as long as they (Congress) knows that we, the public, are watching what they are doing. As long as they see that we care about our freedom of expression, our freedom of association, our freedom from unwarranted suspicion and from unreasonable search and seizure…we can force them to represent us. Because ultimately, we have a power that they don’t.

Wizner: You see in the first part of “Citizenfour,” the top leaders in the Intelligence Community (IC) going before Congress and saying under oath that the NSA, the IC, was not collecting any kind of data on millions of Americans. People have described that as ‘those people lying to Congress.’
But I think that’s actually misleading. The members of Congress who were asking the questions actually knew the answers and sat there while being lied to. But the people being lied to were us, not the members of Congress. This was a failure of Congress.


Q: What should government transparency look like?


(Left to right) Aviam Soifer, Ben Wizner and Mark Davis at the Davis Levin First Amendment conference at the Hawaii Convention Center.

Snowden: The ultimate answer to this is we cannot allow secret laws or secret interpretations of laws in this country.

We have constitutional rights that are not granted by the government, they are inherent to our making. Every man, woman and child is born with these rights, and they belong to us. And if they are going to be infringed through some kind of legislation, and if they are going to try to carve out some exceptions, we have to know about how this works in order to be able to contest it.

(Wizner reminded audience members of the importance of a free and open press in a democratic society.)

Wizner: Let’s do a little thought experiment. Let’s consider what we would’ve known and not known in the last 15 years, if we had only known what the government wanted us to know.

We wouldn’t have known that the case for the war in Iraq was fraudulent and contrived. We wouldn’t have known that prisoners were tortured in Abu Ghraib. We wouldn’t have known that the CIA had set up a network of secret prisons and dungeons around the world and subjected prisoners to barbaric interrogation techniques. We wouldn’t have known that the NSA under the Bush administration decided to disregard law altogether and conduct a warrantless wiretapping program.

I think almost everyone in this room would think these are all things that citizens in a democracy need to know. The reason we now know these things is that some brave and outraged individuals in government reached out to brave and enterprising investigative journalists, or vice versa. And those news institutions made a decision, often over government objection, that the people needed to know those things.

We have always, for the whole history of our republic, needed to have some process, other than just being spoon-fed what government officials think that we should know, and the way that we have accomplished that is through a First Amendment-protected free press.


Q: What should a private citizen do in regards to mass surveillance?

Wizner: Much of the response should be what we call “digital self-defense,” individuals taking steps to protect themselves. I have mixed feelings about that as an activist response. On one hand, the more people who use encryption tools, the less the people who do use them seem like they have something to hide. If 15,000 people in America are using a privacy protective technology, they are a very easy target for law enforcement and spy agencies who will assume that they’re up to no good. But if millions of people use [encryption], there is more of a protection for it and it raises the overall cost of the kind of mass surveillance that we don’t like.

But having said that, I don’t think we should be putting the burden on individuals.

When Google flips a switch and goes to ‘encryption by default’, that offers protection for millions of people. And they can do that with very little effort.

So that’s where I think the activist energy—much of it has to be directed at government—but it should be directed at the companies to whom we entrust our data—the Googles, the Facebooks, to all of these companies which, es-sentially, give us services in exchange for letting them spy on us. We need to tell them that they need to be much more active in being custodians of our data in the face of government attempts to collect it.

Snowden: The most important thing you can do on the short-term, small-scale is to support companies that actively resist the subversion of individual and consumer rights.

Q: (for Wizner) What is the hardest part in defending Edward Snowden?

Wizner: The biggest challenge in offering a defense is there is no defense under the current state of the law for the charges that have been levied against him. He faces multiple counts under a law called the Espionage Act of 1917, which was passed during World War I. This law is mainly aimed at spies—that is, people who sell the nation’s secrets to foreign enemies. The first time that it was ever used for someone who gave information to the public, to the press, rather than a foreign adversary, was Daniel Ellsberg’s case in 1971. But since then, the courts have made it clear that the government has very little burden of proof in these cases. Essentially, all the government has to show is that the defendant was aware that the information was so-called ‘national defense information’ and he was aware the people he was giving it to were not authorized to receive it. So when people say, ‘Snowden should come here and face the music’, let’s be very clear about what type of tune that would be.


Q: (for Snowden) What are your thoughts about coming back to the U.S. and standing trial?

Snowden: There’s no fair trial on offer right now.

My legal team has worked exhaustively to speak with the government and seek a fair and open trial where we can get an answer about the lawfulness and propriety of these programs. And do things in a just and fair way.

(Snowden reflects on the treatment of whistleblowers in contrast to high-level government officials.)

I think there is an argument to be made, and there are real questions to be asked. How do you hold whistleblowers to account? How do you punish them accordingly?

I don’t think I should be free from punishment. I have volunteered to go to prison in conversations with the federal government. But they’re not concerned about the law.

And this is something that is important for people that work for government to understand—the difference in representations the government makes privately and publicly.

Publicly, they say, “We’re not spying on everyone.” Privately, they are.

Publicly, they say, “We care about the law. We are a nation of laws. The rule of law is our highest principle.” Privately, they are more concerned about outcomes, about effects, about powers, and in this case and most whistleblowing cases, they’re more concerned about deterrence.

They are much less concerned about the right or wrong the individual has done than what impacts and effects it may have on other people who are watching.

And it’s on this basis that we need to look to the standards being set by our government officials at the highest level. A senior official in the United States, James Clapper, director of National Intelligence, lied to Congress. He didn’t even get a slap on the wrist. He committed a felony on camera, in front of 330 million Americans.

How can we say we’re a nation of laws? How can we say that the rule of law is the most important value to us…when we can’t so much as be troubled to do an investigation of open and notorious challenges from our most powerful people in the country?


Q: Any final thoughts?

Snowden: Think about the kind of society you want to live in and how to realize it. What kind of values do you care about? And to care about—not just enough to believe in them, not just enough to give lip service to—but to stand up for.

by Jessica Crawford, Ka ‘Ohana Staff Reporter