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Is it Legal: Snowden Vs. The State, NSA Scandal

Friday 27, December, 2013 11:25 PM EST

7 months ago Edward Snowden, then 29, told his supervisor at the National Security Agency in Kunia, Hawaii, that he needed a couple of weeks off to receive medical treatment for his diagnosed epilepsy.  Within 24 hours of that conversation Snowden touched down in Hong Kong carrying four laptop computers reportedly loaded with what is now believed to be as many as 1.7 million classified documents, stolen from the Kunia NSA office using a simple USB port.

Soon after fleeing the US, Snowden began leaking top secret details of massive NSA surveillance programs with catchy bold names like PRISM and XKEYSCORE, involving the collection and storage of metadata from every American phone, computer and device as well as security camera images from our banks, hotels. gas stations and more.

Snowden has stated he was compelled to come forward and alert the American public of the NSA’s  secret surveillance activities.  In his capacity as an infrastructure analyst, Snowden reasons that [he], “…was exposed to a lot more information on a broader scale than the average employee…” , June 6, 2013 video interview (12:35) with Glenn Greenwald of The Guardian.  Snowden apparently believes he was in a unique position to observe a multitude of massive and intrusive surveillance programs in real time, whereas the average NSA employee is exposed to only fragments of one or two potentially disturbing programs over the course of an entire career.

Snowden’s self defense may be likened to one of Oprah’s favorite quotes, “When you know better you do better”.  Is Snowden “doing better” than his supposedly ignorant former NSA co-workers by leaking these sophisticated surveillance programs?  Is Snowden a true American whistleblower now living in asylum under Putin’s protection in Russia?

Does Snowden meet the legal threshold and qualify as a protected whistle blower (whistle blower protection act of 1989)?  Snowden, now reportedly gainfully employed as a maintenance administrator for an unnamed Russian website, commented last week about a DC District court ruling that went against the NSA.  “I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge…”

Is Snowden a whistleblower?

If the National Security Agency (NSA) broke the law and Snowden reported the acts to the media , should Snowden be protected under the ’89 law?  The only way to answer that question is to ask questions about the NSA spy program.  Is it legal?

Assume that the following is true (alleged by Snowden to be true):

 Our American NSA is engaged in top secret programs (we’ve chosen three alleged programs for discussion) involving the massive collection and storage of data:

  •  Program XKEYSCORE – NSA objective:  Collect and store every computer keystroke from over 500 servers around the globe.
  • Program PRISM – NSA objective:  Access the servers of Face book, Google, Apple, Microsoft, Yahoo, YouTube and Skype, among others.
  • Program Boundless Informant – NSA objective:  Select a country on a map and view the metadata volume [collected] and select details about the collections against that country.

Based on these three top secret programs, NSA’s objective appears to be the collection and storage of metadata.  On its face, collecting relentless data is creepy – the thought of it immediately stimulates the mind to play images of a 30 year old stalker living in mom’s basement and hacking into the face book account of a woman who once said “hello” to him in 1998.  But where does the mind go when we learn it’s our government spending over a billion dollars on sophisticated climate controlled buildings in Utah to store our every keystroke, browsing history, phone call, email, chat room rant, face book birthday good wishes and more?

 Is it legal to collect data?  Is it legal to collect and then store the collected data?  Certainly we may assume there is a purpose or an end goal for storing the data, otherwise just storing it would be insane.  It reminds me of the Seinfeld episode where the car rental company didn’t ‘hold’ his reservation.  Jerry logically explained to the counter woman, “…anybody can just take a reservation…(motioning with hands over head), take, take, take….you need to ‘hold’ the reservation…”  At what point will the ‘storage’ of data by the NSA turn into something else?  And getting back to the original question, “is collecting and storing data legal?”

One judge said no.  Last week US District Court Judge Richard Leon, District of Columbia, published a 68 page opinion in favor of plaintiffs (Klayman v. Obama).  His opinion in-part reads, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval…”  He ordered an injunction:  the NSA is to cease collecting the phone records and destroy any existing stored phone data connected to plaintiff’s phone numbers of record.  Leon then stayed his own injunction by stating in open court, “…in light of the significant national security interests at stake in this case and the novelty of the constitutional issues….” The judge’s self imposed stay allows the government 6 months or longer to appeal his ruling.

Of interest: Plaintiffs in Leon’s ruling were not under criminal investigation at the time they filed (April 2011) and had no reasonable expectation that their phone data(s) were collected and/or stored.  None the less, Klayman v. Obama successfully argued before Leon that they had standing and the case advanced.  Leon’s ruling in-part, regarding the standing of Klayman v. Obama: “…Congress should not be able to cut off a citizen’s right to judicial review of that Government action simply because it intended for the conduct to remain secret…”

All politics and national security aside, is collecting and storing data legal?