The passage of the USA Freedom Act last month brought whistleblower-in-exile Edward Snowden back into the limelight. The former government contractor’s leaks of classified National Security Agency documents two years ago revealed to the public for the first time the full breadth and power of government surveillance programs and their lack of oversight. As a result of the law’s passage — and its curtailing of the programs Snowden shed light on — Snowden wrote a triumphant op-ed in The New York Times, heralding the world’s rebuke of invading the privacy of ordinary citizens.
Moment spoke with Ronald Goldfarb, editor of After Snowden: Privacy, Secrecy and Security in the Information Age about the new legislation, what it means, and whether Snowden has yet won his battle for privacy.
Can you explain the significance of the Freedom Act?
The Patriot Act was passed in the wake of 9/11. It sailed along… more like a submarine, because nobody really knew what was happening until Snowden’s revelations came about and, in my opinion, changed the world.
There are those of us who say that the titles have a nice metaphoric quality. The Patriot Act was rushed through at a time where we were all worried and didn’t know what was going to happen… The Freedom Act represents a pause that we’ve now taken.
There is, I think, an opening of the window and allowing the sunshine in. Does it radically change things? No. I don’t think even the critics of the NSA would want to take the position that we shouldn’t be doing energetic things about national security.
I think now, in the post-Freedom Act days, which we’re now entering, I think there will be further dealings with — what are the proper bounds constitutionally of what we can do?
I think we have Snowden to thank for it, because none of it would have come about but for his revelations.
Just how intrusive or nonintrusive is the collection of metadata [which the Freedom Act effectively halts]?
I think there’s only one way to describe it and that is that it’s intrusive. Those people who say, ‘Well, I have nothing to hide; therefore, it’s okay’ don’t share a value that I have, which is — it doesn’t have to hurt me in terms of what it reveals. The mere fact that it’s going on hurts me because it means that I live in a society where we have people who I never authorized to read my emails or check my credit cards or listen to my phone conversations.
One of the problems with metadata is we have so much now that, as Snowden has said in a recent conference… we have so much that we don’t have anything. We have such vast oceans of hay that we’re missing the needle in the haystack.
[After 9/11, lawmakers used the term] “If I have to collect the whole hay sack to get these needles, we will do it.” And I argue that that needs to be reexamined.
What will happen to all the data that has been collected already?
There’s an interim period where what has been collected is being turned over to the telephone companies. This is available to our national security investigators, but they have to go through the judicial process guaranteed by the constitution of getting a warrant if they have a real basis… to get those needles.
So it isn’t that we’re burning it all and flushing it down the toilet. We’re putting it under private controls and subject to judicial, constitutional protections.
And the other thing that’s very integrally related… is that one of the reforms of the Freedom Act is to change the procedures in the [Foreign Intelligence Surveillance Court] in which there was only once side, in the past, represented. That is now made more transparent and there is somebody else present now besides the government to make the case for not having a warrant when the government says there is.
The legislation expires in four years. What happens then?
I think what’s going to happen is — there was a rush to deal with the questions raised by Snowden fast because on June 1, the sunset provision [of the Patriot Act] came in, and thee would be nothing. So the Freedom Act is very much a quick, under-the-gun and under-the-deadline reform measure. I believe that there will be further considerations legislatively about what we should be doing in a more thoughtful way over time to assure that our national security apparatus has what it really needs to do the job we all want it to do, and at the same time to subject it to a tripartite type of government. To appropriate congressional oversight, to appropriate judicial review, so the people decide how much privacy they want to give away and how much power they want to give to agencies that operate secretly.
Critics say it doesn’t go far enough; still other critics say it will compromise our country’s security. Who’s right?
The very large majority of people were in favor of it.
I think that something more than what the Freedom Act did should follow. I don’t offer the specifics of what that legislation should be, and I was all for the passage of the Freedom Act because we needed something to replace the Patriot Act, and it was dealt with in an interim way.
After Snowden is a phrase that’s used a lot now – it’s the title of other articles, even other books. In terms of surveillance, governing, security, journalism, privacy – do you think there are two distinct eras, before and after Snowden?
Absolutely. I don’t think anyone would dispute that.
At the time [that I came up with the idea for the book], we were getting lost in the debate about whether Snowden was an angel or a devil, which is less important than the question of — has he revealed things that wouldn’t have been revealed, and are we better for now dealing with those issues.
Whether or you like him or you don’t like, we need to deal with privacy, we need to deal with oversight, we need to deal with judicial review, we need to deal with the role of the press.