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United States Files Civil Lawsuit Against Edward Snowden (justice.gov)
273 points by coloneltcb 29 days ago | hide | past | web | favorite | 458 comments



This is the "It is illegal to inform the citizen base that the government has removed their constitutional right" lawsuit.

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.


Exactly. Where is the accountability for the government officials who deprived us of our rights in the first place? There's been none. They made a few perfunctory gestures toward self-control, and kept right on violating the Constitution in the same ways under programs with new names.


Well we got close untill the heads of the intelligence agencies lied to Congress.. Drat, I guess they were too slippery for us this time!


The problem with the Government is that the people in power feel like they have all the power and don't want to let it go. I think that robots would serve us better.


Rightly or wrongly, that is not a part of the SF86 form when one applies for a clearance.

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.


I see the same issue with the other debate raging on HN: Stallman and Free Speech.

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.


> ... conflate what is moral with what is legal.

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.


> So what are we to do? Is it more moral to work within the system to change the laws, or to break them entirely?

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.


> Imagine if the founding fathers had tried to "worked within the system" of British rule.

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.


> conflate what is moral with what is legal.

https://en.wikipedia.org/wiki/Is%E2%80%93ought_problem


I don't think this is the "is ought" problem. Most people recognize the existence of ought, and ought is explicitly recognized as a pre-condition for legal authority.

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.


In a free country established by the principle of self government they are more closely related than anywhere else.


I agree with your observation and statement, but also want to add there is a moral argument that if one objects to a law or a contract, one should remove oneself from under it (leave the country/company) rather than break it, even if the law itself is immoral.

Not that I'm arguing one way or another how that applies in this situation, though.


There the concept of civil disobedience. You don't simply leave a country because you disagree with it, you change it. Refer to the King and the civil rights movement for more. Go further back to the other Martin Luther for even more.


There is also the option of ignoring it (piracy vs IP laws) and subverting it (many communities refuse to work with cops and handle justice themselves).

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?


We all have our own moral compass.

I'm pretty sure the Declaration of Independence (1776) was also unlawful as well...


This leaves us at a problem. Legality seems far too poor a standard to judge actions upon outside of court (and sometimes even in court), yet any moral standard is quite subjective to each person. So how do we determine right or wrong? There is a reason this has been an open problem for all of recorded history.


>You don't simply leave a country because you disagree with it

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.


For many changing it might be more practical than leaving it. For some like many refugees the choice was leave or die.


Isn't the concept of political refugees contrary to what you are saying?

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.


There's a difference between saying it's OK to flee repression, which I don't think anyone is disputing, and saying that given the option to flee, it's immoral to instead stay and practice civil disobedience, which was the claim made up thread.


Thanks for clarifying. It seems I was wrong in my understanding.


Bystanders may be interested in Kohlberg's stages of moral development, which provides a descriptive (not prescriptive) framework for classifying moral arguments like this:

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".


Snowden did leave both the company and the country, though.


> I agree with your observation and statement, but also want to add there is a moral argument that if one objects to a law or a contract, one should remove oneself from under it (leave the country/company) rather than break it, even if the law itself is immoral.

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.


> 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.


> 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.

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.


Sticking to your principles works on an individual level, you can't generalize to what the effect of that would be on the whole population. There were plenty of 'good' Germans who refused to become part of the madness. Plenty of them ended up just as dead as the victims on the other side of the conflict.

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.


> And in the end it did not matter much.

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.


Fair enough. In the aggregate the effect must have been substantial for you to know three people like that.


Does that mean every government agent that broke the law and spied on American citizens should be deported?


"leaving a country" in terms of being subject to its laws is rather a lot easier said than done.


The laws against publishing classified information only apply to people who are authorized to have it in the first place. As soon as that info makes its way to someone who is NOT authorized to see it, they can legally do whatever they want with it.

There is no legal definition of "journalist" in this context.


This is simply untrue. The laws regarding publishing classified information to those unauthorized to have it applies across the board. There is no exception for journalists. There has been a tradition of not prosecuting journalists for doing so and the Supreme Court ruled in the Pentagon Papers case that the government couldn't prevent publication but didn't rule that journalists could not be prosecuted after the fact for doing so. Several justices released their own briefs regarding the opinion because the reason for ruling against the prior restraint varied among the justices. In a few of them justices mentioned that the government could seek, likely successfully, criminal charges after the fact.


> The only people I'm aware of that can publish classified information without punishment are journalists.

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


Publishing timely facts makes you a journalist. Publishing older facts makes you a historian. There are no legal qualifications for asserting freedom of the press; everyone can do it.

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.


Existing laws allow charging journalists for publishing classified information. There exists no freedom of the press protection regarding such publication. People seem to think that the Pentagon Papers case somehow created such a protection when it did not. In that case the Supreme Court ruled that the government couldn't prevent publishing of such information. It didn't rule that those that did couldn't be prosecuted under the Espionage Act. In fact several of the majority said in their briefs that the government could do exactly that.


I understand all of that, and what a journalist is, thanks. I simply didn’t realize they were suing over the book and not, say, they yers of reporting from the Guardian, Le Monde, Intercept, etc based on documents passed to those publications’ journalists by Snowden.


Some people believe that being a journalist, and thereby enjoying the lawful protections guaranteed to journalists, requires press credentials. It is important to attack this belief whenever it is suggested, as it endangers all those journalists who are not fortunate enough to have a regular salary and a large media group backing them up.

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.


Acting members of Congress can do it in a roundabout way, as long as they do it while speaking on the floor. Anything they says becomes part of the Congressional Record, which is available to the public and de facto unclassified.


In an interview, Snowden mentioned that he also took an oath to uphold the constitution. So he had a choice between the form and the oath.


> The only people I'm aware of that can publish classified information without punishment are journalists.

POTUS can also do it.


When the president does it, it's not illegal.


That's why he/she can do it.


> The only people I'm aware of that can publish classified information without punishment are journalists.

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's a shame that the government has effectively forced all moral citizens to avoid public service in intelligence.


The form itself may not, but it doesn't stand alone. There is the constitution, possibly legislation, legal precedent and gloss, and ultimately, the rulings of a jury, judges, and courts of appeal.

Which is why we have a rule of law and a justice system, and not simply contracts.


Surely this has nothing to do with moral objections and simply to do with the law.

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.


Didn’t Obama tout unprecedented whistleblower protections?


He didn’t “tout” the protections, he eliminated them.


That does not make it less illegal.

It just makes it a perfect candidate for jury nullification!

https://en.wikipedia.org/wiki/Jury_nullification


This is a civil lawsuit.

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.


and now neither you nor anyone else who reads this comment are able to properly serve on the jury


I'd be curious to see an explanation of why just knowing about jury nullification would disqualify you from being on a jury - obviously if you intend to nullify or "helpfully" inform the other jurors about nullification you should disclose it and therefore be disqualified, but I do not see how knowledge of nullification counts as something that should disqualify you if you have no intention of nullifying.


There’s generally very loose discretion to eliminate potential jurors. Often without providing any reason at all.

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.


That works for the defense as well -- they're allowed to object to jurors too, for the same reasons: potential biases, ability to see through sophistry, etc.


I didn't say it would legally disqualify you, just that it would prevent you from doing jury duty properly.


In what way though?

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.


...it is illegal for any US citizen to inform...

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.


Given the fact the constitution binds the govt and details what rights the govt has I am not sure how the govt has a leg to stand on.


Because, AFAIK, there’s nothing binding the government from enacting a law against treason or espionage. So they did a century ago. The problem is not that (depending on who you ask). The problem is that they’re abusing “national security” to justify needing secret courts and claiming a legally protected action (whistleblowing[0]) is illegal.

[0]: Whistleblower Protection Act of 1989 - https://en.wikipedia.org/wiki/Whistleblower_Protection_Act


The Whistleblower Protection Act of 1989 only provides protection for government employees which Snowden was not and it also doesn't apply to intelligence agency at least when classified material is involved. The Intelligence Community Whistleblower Protection Act (ICWPA) of 1998 is the applicable law here and applies to government employees and contractors. It specifies the process of reporting waste,fraud or abuse when classified material is involved and provides protection if the process is followed. Snowden choose not to follow the provided process and therefore is protected under the law.


Snowden repeatedly attempted to follow internal processes and was stonewalled.

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.


> Snowden repeatedly attempted to follow internal processes and was stonewalled.

There is no evidence of this.


The only parties who could provide this evidence are govt agencies who are clearly not pleased with Snowden. Seems kind of silly to expect them to provide evidence to substantiate his claim.

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.


Intelligence Community Whistleblower Protection Act process involves bringing the matter and any evidence to the Department of Justice. The DoJ then has a fixed time to either investigate or decide not to investigate. If they decide not to investigate the whistleblower can bring their complaint and evidence to the staff of the Senate Intelligence committee for the committee to decide if further investigation by the committee is warranted. If the DoJ does investigate they have to notify the Senate Intelligence committee of the investigation.

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.


> we should take Snowden at his word because none of his releases have been discredited as fabrications

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.


Could you give an example of his wildest exaggeration? I've seen zero evidence backed claims that he misled the public.


"I, sitting at my desk, certainly had the authorities to wiretap anyone, from you or your accountant, to a federal judge or even the President, if I had a personal e-mail.”

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.


There are fundamental rules in the bill of rights the govt has passed laws to circumvent.

Those laws are fundamentally illegal


Such as?


"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."

Any law that allows the NSA carte blanche to observe my communication is a law authorizing unreasonable search and seizure, and is therefore unconstitutional.


I'm not aware of any law that gives the NSA carte blanche to observe my communications. Can you site the specific law?


The PATRIOT Act is a big one[0]

[0]: https://en.wikipedia.org/wiki/Patriot_Act


DOesn't contain carte blanche for the NSA to observe my communications. There are limitations and checks. They may not be a strong as some would like but the law give far from carte blanche permission.


You’re quibbling over semantics in this thread. Yes, they don’t legally have carte blanche, but they sure act like it does. Have you even looked at the Snowden leaks? They may not be authorized to have carte blanche access to many things, but through programs like PRISM, they had essentially, the entire internet at their fingertips.


It would be helpful if you could cite specifically where it says the NSA can do this. I don't see it anywhere on the wikipedia page.


Sec. 201. Authority to intercept wire, oral, and electronic communications relating to terrorism. [0]

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...

[1] https://www.justice.gov/archive/ll/highlights.htm



"By law, NSLs can request only non-content information, for example, transactional records and phone numbers dialed, but never the content of telephone calls or e-mails." Also NSL's can be contested in court. No carte blanche to observe my communications.


Non content information is content. Meta data can be used as a serious invasion of privacy. This semantic dance violates the spirit of the law.



Where in the executive order is carte blanche for the NSA to observe communications given? I can't find it.


It doesn't have to, the fact it observes communication without due process violates the constitution. Full stop.


Another example...

https://en.wikipedia.org/wiki/Free_speech_zone

1st amendment ensures the entire US is a free speech zone.


Snowden got a job handling classified material. The government only trusted him to handle that material because he signed various contracts that said he would keep the material secret and that he would allow the NSA to read anything he wanted to publish so they could be sure he didn’t accidentally leak something (and, potentially, so they could plan for damage control).

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.


The most fundamental part of his job was to uphold the US constitution. After numerous attempts to stop the constitutional violations of the NSA from within, he chose to uphold the constitution rather than the orders of unelected power hungry spooks.

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.


> After numerous attempts to stop the constitutional violations of the NSA from within

When did Snowden try to stop phone metadata collection from within?


Upholding the constitution is not a citizen's job. It is the supreme court's.

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.


Upholding the constitution is absolutely the job of public servants, which is why our country makes them take an oath. Not sure why you think otherwise.

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.”

https://www.law.cornell.edu/uscode/text/5/3331


Dont forget the 20 million + veterans in the US who have also taken that oath.


I believe the whistleblower act does cover this contract as is mentioned elsewhere turning this lawsuit into retaliation by the govt thus illegal

https://en.wikipedia.org/wiki/Whistleblower_Protection_Act


Is there a constitutional right to privacy? Where is that enshrined? I say this as someone who values privacy for all.


Try the 4th Amendment:

> 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 you're an originalist (and I'm not saying that I am), data in transmit is not necessarily protected by that amendment

If your data has left your house, is it really your data, or is it Google's say?


Not trying to plug Andrew Yang here, but this is a big part of his platform. He's advocating for a right-to-data bill that would make any and all data collected and transmitted yours.

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.


Curious how this handles data that is not specifically about one person, but is about the relationships between many people?

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?


I haven't seen what would actually be in the bill, and I am curious as well. Hence one of the reasons I prefaced by saying I'm not plugging him :)

Questions like these also partly explain why legislators are so reluctant to create law for such things.


It is the basic premise for GDPR in the EU. While convoluted (it did not end up that bad, or as bad as you'd predict), it actually delivers this idea in a workable way.


Is that really true?

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.


Mail protection need not fall under 4th amendment protections if it's protected by laws passed by congress.

Another question would be: would mail be protected without that law and just by the 4th amendment itself?


If it’s in an envelope, sure, but not if it’s on a postcard.


When you send a letter it does not belong to the post office while in transit. Why are bits on a hard drive any different?


Inspectors can and do inspect the contents many types of mail, though, so I'm not sure this example is a good one for those championing privacy...

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.


How does that jive with:

"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.


I really have no idea why the 4th amendment only applies to a subset of mail, just that it does. It'd be great if someone with more knowledge could explain the reasoning behind it.


I would imagine there is more of a compelling state interest in protecting against actual "things" (contraband, bombs, etc), whereas a letter can pretty much only contain "speech".


My original comment was apparently unclear in this, but in regards to the 4th amendment protections, there isn't a distinction between "things" being sent via mail and "speech" being sent by mail. Some letters of "speech" are not covered by the 4th amendment, just as some bulk shipments of "things" are covered by the 4th amendment.


That distinction isn't drawn in the 4th Amendment itself. It comes from from 39 CFR § 233.3, which defines the rules and procedures for searching mail ("mail covers"). There, a distinction is drawn between

(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 vs Unsealed has more nuanced definitions than just "letter"/speech and "item"/things, though. If you look a bit further past the quotes you provided, you'll see:

>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.


You're making this way more mysterious-sounding than it is.

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.


That simply isn't the case though. First Class Mail (and Priority Mail) are specifically intended for both "letters" as well as "things". A glance at the USPS website shows this. Indeed, even in the CFR you quoted, it specifically mentions certain types of "package" services as sealed mail. I don't know where you're getting that there is a specific "intention" for anything.


It’s literally what the CFR says: “maintained...for the transmission of letters sealed against inspection.” The word “for” clearly means “intended for” or “for the purposes of.”

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.


Sadly precedent started out the supreme law over the obvious implications - see obscenity laws and their existence.

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.


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I did not say that A isn't 1. In fact, in my comment I specifically acknowledge that A is 1 (some types of mail are protected by the 4th amendment). Please do not try to construct a straw man.

The point is that there is already a determination that not all items sent through mail services have an expectation of privacy. If we're drawing a parallel between physical mail and e-mail, this lends to the belief that such a determination could also be made for items sent through electronic media, especially items sent through electronic media that is owned by private companies (ISPs), similar to how private shipping companies do not provide 4th amendment protection.

>There certainly is an expectation of privacy in my mail CORRESPONDENCE

Not all mail correspondence, which is the point. If you send a letter through USPS standard mail, there is no expectation of privacy. If you send a document through UPS, there is no expectation of privacy.

Also, you're getting hung up on the usage of the words "package" vs "correspondence" vs "mail" vs "letter". This is an unnecessary distinction. A letter is just a "package" that contains paper with information on it. The law doesn't see a difference. In my original comment, you should read the words package/letter/mail/correspondence interchangeably.


It's worth noting that "Standard Mail" has a specific meaning here, and refers to things sent in bulk, like newsletters and flyers.

It is emphatically not the standard service you would use to mail your aunt a letter. That service is called First Class Mail, and is not to be opened.


That's incorrect. "Standard mail" is the type of mail service used for anything that isn't one of the other named mail services, such as First Class or Priority Mail. Things sent in bulk, such as flyers, are an example of standard mail, but that does not preclude anyone from using standard mail to send a normal letter.


I don’t think it is.

Perhaps you have a lot more aunts than I do, but everything I can find suggests standard mail had a large minimum (200 pieces?) and preprocessing requirements.

Here’s a page, from the post office itself:

“At one time, it was called Third-Class Mail. Today, it's known as Standard Mail. In 2017, it will be called (USPS) Marketing Mail. The U.S. Postal Service has proposed a name change for Standard Mail to better signal to customers that this mail is used primarily to market a product or service.”

https://www.uspsoig.gov/blog/names-and-prices-they-are-chang...


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It isn't cognitive dissonance just because you aren't capable of discerning the difference between the types of mail. It is possible (indeed, it is the case) that the law sees no difference between packages and letters while also making a disctinction elsewhere. In this case, the law makes a distinction between sealed mail and unsealed mail, but it does not consider the fact that they are "letters" or "packages" in this distinction.

Again, you're getting hung up on the words "letter" vs "package", and you're constructing a straw man around that. Please take your own advice and avoid such arguments.


I'll bite. Where is this distinction? With references please.

You keep saying things that are factually and demonstrably untrue: "if you send a letter through USPS standard mail".... but that isn't how mail works. Standard is for commercial packages. You keep saying things that are easy to see are false.

In fact, I provided sources, including a law called the Mail classification (39 U.S.C. 3623), "The Postal Service shall maintain one or more classes of mail for the transmission of letters sealed against inspection"

The whole idea from the beginning: The mail types you are talking about were specifically created to protect 4th amendment privacy protections. It was classed in to categories that were overall: individuals communicating = more protections... non-individuals doing non-correspondence stuff = less protections. (correspondence as understood: the exchange of ideas between people via the written word)

In fact, I gave you a reading where the supreme court specifically said I had an expectation of privacy in my correspondence. I'm still waiting for your evidence that backs up your claim... or for that matter any references or outside sources that verify what you say:

> If you send a letter through USPS standard mail, there is no expectation of privacy


> When you send a letter it does not belong to the post office while in transit.

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).


They are different because of aggregation: the hundreds of signals an organization has from your activities are combined into thousands of derived signals, which you probably would not have offered the organization freely.

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.


Can you point an originalist to the constitutional clause or amendment that grants such a right?


No clause or amendment grants any right. Rights are explicitly innate to the individual and not granted by or limited to the constitution.


An originalist would point out that the constitution does not grant rights, but merely limits the laws and actions that government can take.

Despite what the constitution says, human rights are not self evident, they must in fact be legalized.


This hypothetical originalist would have an interesting time dealing with the ninth amendment, which explicitly states that the Bill of Rights is not a full listing of all human rights.

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."


It probably isn't in the Constitution, but I would not be surprised if there was legal precedent for such a thing.


That's the problem with an originalist, settled law isn't necessarily settled. Previous court decisions may have been decided incorrectly.


Re: originalists:

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?


Because the first and fourth amendments guarantee different rights. The first guarantees that you essentially can't be arrested for speech. It says nothing about whether or not your speech can be collected and recorded. The fourth forbids the government with searching the enumerated items without cause or a warrant. Very different things.


My point was that the “originalist” view of the constitution falls apart when you see that the Supreme Court has ruled that speech that the framers couldn’t even imagine is protected. They've done the same with the fourth (you can’t search a car without a warrant or probable cause even if it’s in public... to an extent).

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.


If I entrust data to Google, or my possessions to the safe of a bank, I am still injured when that trust is broken. I gave conditional access to one entity, not to everyone, and not to the government.


Edward Snowden showed us that the NSA can and does access our webcams remotely. So they are watching you even when you don't know your data is leaving your house.


Where "our webcams" are the webcams of non-US citizens outside the US who are of interest to national security.


Wrong. That's the entire point Snowden was making. That they are engaged in illegal domestic surveillance.


The only illegal domestic surveillance program Snowden leaked was phone metadata collection. Where did any of his leaks say that the NSA would hack domestic webcams at will?


"It’s a question fit for Benjamin Franklin.

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...


I don't think that logic even works from an originalist perspective. If the bank holds a safe deposit box on your behalf it doesn't become the banks property unless you abandon it and searching it is no less legally problematic because its lies within the banks property.

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.


That wasn't the only program. They were also tapping into cell phones and laptop webcams for remote surveillance on targeted subjects, but without any constitutionally required warrant checks in place.


But was it illegal? And how would you know that such a warrant didn't actually exist in a court, particularly the FISA court?

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.


Have you been paying attention? At the time that Snowden made his revelations, no approval was necessary for an NSA analyst to activate a webcam, for example. They literally just had to select from a menu of totally broad reasons on an internal web form documenting the access. They had a congressionally granted exemption from requiring case-by-case FISA approval. This is now all open and acknowledged, and found to be illegal.


Last I checked, the courts made the final decision on what's legal and what's not.

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.


It was tested in court and found to be illegal:

https://www.reuters.com/article/us-usa-security-nsa/nsas-pho...


So that case didn't go to the supreme court, as congress made that action specifically illegal.

But in other surveillance cases, the supreme court has dismissed the cases.


Remotely interfering into a computer normally refusing access to force it to transmit vidoe/data is a blatent violation of the 4th Amendment and illegal, yes. The "Remotely interfering into" part specifically since you're entering into a person's property without a warrant.

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.


Among others, Neil Gorsuch is one originalist-friendly justice who has strongly argued against this interpretation of the 4th Amendment in a modern data transmission context.


Isn't that data one of your effects?


The answer is yes it is still your data. There are relevant supreme Court precedents which resolve this unambiguously. Hence why you need a warrant to tap a phone line instead of just claiming "it's the phone companies signal".


If you're an originalist, spying on everybody is not one of the enumerated powers of the federal government.


Yes, the 4th and 14th amendments are most often cited, but others also apply. For more see here...

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightof...

https://injury.findlaw.com/torts-and-personal-injuries/is-th...


The constitution does not explicitly enumerate a right to privacy.

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.


The 4th amendment secures people against unreasonable searches.


There's an episode of the West Wing that goes into this, "The Short List". One of the characters, Sam Seaborn is questioning a nominee of the supreme court about his position on privacy. It's classic Aaron Sorkin writing, but it might address your question.

https://www.youtube.com/watch?v=GaEBXmeaXbI


It's the one about unlawful search and seizure.


There are also some people who have tried to make the argument that the 3rd amendment could protect privacy as well.


It's one of those amendment thingies.


This is the "It is illegal to inform the citizen base that the government has removed their constitutional right" lawsuit.

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.

[1] https://youtu.be/5yhxTyYEF9s?t=24s


What? No, this is a lawsuit for violations of the NDAs Snowden signed with NSA & CIA in particular regarding not submitting his manuscript for pre-publication review.


It's worse than that.

What gives the NSA the right to capture private data from other countries?


Well, they claim the citizens of other countries are not protected by the US constitution. Not that I agree with them, but it might be harder to challenge this in courts.


Sure, from a legal perspective since I guess it's in a grey area of international law. Morally speaking it's wrong.


Any country with resources is doing it to allies and adversaries alike and selective outrage requires top-shelf cherry picking. Everything is tapped everywhere.


This is a civil lawsuit, not a criminal one. This says the government can take the profit you earn from sharing state secrets.


Where is the right to privacy, in the US constitution, spelled out?

[ asking because i don't know ]


Who said anything about privacy? This is about the 4th amendment.


Which court ruled it applies here?


Where's the privacy amendment again? Asking for a friend.


>>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.

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...


”The United States’ lawsuit does not seek to stop or restrict the publication or distribution of Permanent Record. Rather, under well-established Supreme Court precedent, Snepp v. United States, the government seeks to recover all proceeds earned by Snowden because of his failure to submit his publication for pre-publication review in violation of his alleged contractual and fiduciary obligations.”

What? Either he released inappropriate material and it should be pulled, or he didn’t, and they should leave it alone. It is my understanding that a breach of contract does not entitle one to compensation unless one can show damages. By making this statement, they seem to be saying that there are none.

They’re basically saying “he doesn’t actually reveal anything problematic, we just want to steal the profits for this work, because we don’t like him and we can.”


The government generally can't restrict publication in the US no matter what is being published: https://en.wikipedia.org/wiki/Prior_restraint

But once something is published, they can take action against the publisher/author.


No, it sounds like a run-of-the-mill breach of contract lawsuit.

As alleged, Snowden signed a contract where he agreed to do certain things, X, for the right to do Y. He did Y but then didn't do X. And now the counterparty is suing for damages under the contract.

The US government has limited power to stop publication, so all Snowden had to due was submit the manuscript for review, reject any requested changes, and then go ahead and publish the book in its original form.


His NDA included USG restrictions on what he could publish, if he didn't accept the changes the outcome would be the same.

NDA available via https://news.ycombinator.com/item?id=20998966


With respect to confidential information only...

It helps to actual read the NDAs and not just blindly cite to them.


I would say it's more like the 50% tax on drugs: yes it is illegal to sell (illegal) drugs, but if you still do it, then you need to pay taxes on the money you make selling them.

They either get you for doing the illegal thing or for the money you should have paid them while doing it.


It sounds to me like they're trying to discourage other CIA/NSA/TLA agents from running off to a place like Russia and writing their own tell-all, even if those books are benign.

“The United States’ ability to protect sensitive national security information depends on employees’ and contractors’ compliance with their non-disclosure agreements, including their pre-publication review obligations. This lawsuit demonstrates that the Department of Justice does not tolerate these breaches of the public’s trust. ..."

That sounds like a reasonable explanation. Granted, I would not be surprised if that was only a small fraction of the real reason, and the vast majority is like you said: "because we don't like him and we can."


NDAs with financial consequences are common.


For those wondering, the purpose here (part of a multi-pronged approach) is to restrict his income and seize his assets. The less money someone has access to, the less power they have. This makes it harder for him to live day-to-day, restricts his access to experts who won't work pro-bono, and ultimately will hurt his criminal defense should he ever return to the USA.

These guys don't fool around. Expect more pressure from other angles as well.


I strongly agree. Since Snowden himself is presumably in Russia, the U.S. government is effectively attempting economic sanctions against him. Their method is to scare anyone that might send him money with a lawsuit.


Edward Snowden should really setup a monero wallet and post the address on his site. I would love to give him some money at the end of the year.


He's just released a book, I wonder how it is set up, can he earn the money from it or not?


If he loses the lawsuit, no (the money goes to a trust for the USG).

It's possible that Macmillan paid him an advance and so he already has the money. I don't know if the feds can do much in that case.


This is indeed the case, the rumoured advance was around $100k.

Also, it's entirely possible that there will be ways for the publisher to never repatriate profits from sales abroad and/or translations.

This is just petty stuff from petty bureaucrats.


Can't Snowden's publishers just use the Irish tax loopholes and bill the US corporation "intellectual property" rights with the same value as the profits? So that the book's profits are 0?

This would also provide a strong justification for closing said loopholes.


I bought the book, and I hereby commit to donating a large multiple of the price to an appropriate charity or Snowden himself if they win this suit.


I hope the government realizes how much they’re pissing everyone off by violating our rights and defending themselves for doing it


> how much they’re pissing everyone

I am afraid that it is not even a significant portion of the population that is pissed.

If it was, then Snowden leaks wouldn't have been almost forgotten in 5-6 years. People seem to have accepted governments can do whatever they want without any consequences.

Edit: Wanted to clarify that I am not even talking about the US, as part of the leaks it was revealed that NSA was listening to Angela Merkel's Phone. Germany has already forgotten that it seems.


> Germany has already forgotten that it seems.

No, Germany hasn't forgotten. The US trying to listen Merkel's phone and vice versa is expected.

https://www.spiegel.de/international/germany/german-intellig...


With all due respect: I’m not sure average people care. The only people I know who talk about it also read this site religiously.

I don’t say it to be rude, but it’s similar to my coastal liberal friends thinking their bubble opinion applies in Ohio.


If I'm ever sent a resume that lists employment at the CIA, NSA or DOJ, it's going straight into the circular file. Red flag that they lack morals.

Since the CIA won't allow past employees to list their work experience, their taint has leaked onto anyone ever employed by the State Dept or govt contractors as well.


For very small values of 'everyone'.


With you on this. Can't wait to get home and read the book tonight.


It's not about going after Snowden, it's about going after the publishers of the book.


I was vague about the exact compensating donation because it'll be clearer when the time comes what'll do the most good.

The excerpt I saw was about trying to enjoin Macmillan to transfer them any money they were giving Snowden & any agents, etc.


Disclaimer: I'm just a ingorant non-lawyer non-american.

Wouldn't a great defense here be that the NDAs shouldn't be enforced because the actions covered were criminal? I mean, isn't that standard with NDAs?


Whistleblower laws allow you to blow the whistle to a government agency, not to the press or the public in general.


Courts have thrown out NDAs before because they were unreasonable or unconscionable - Snowden would argue that he signed an NDA under the pretense that the government was behaving according to its' own laws, and that the NDA should be thrown out because that reasonable expectation was violated.


Whistleblower laws are a con. Principled reporters have never been treated fairly in the US. It's the same crap as "responsible disclosure"; it just gives the organization time to assemble the cover up. Publish without warning in the public interest, and the public will see the truly responsible party with their hands unclean.

Graciously give them six months to clean up their act, and they will instead use it to clean up their mess--which is actually just you. Publish afterward, and you will find that the plan to discredit and humiliate you was already loaded and ready to fire.


Source?


What part was criminal? And how would he prove that?


The alleged spying on US citizens. I know the rest of us are fair game somehow.

This could be a chance to get this before the courts, was my actual (badly communicated) point.


I think we're a little past the need for an "alleged" qualifier.


He released a lot more than the spying on US citizens.

This lawsuit also appears to be about a different thing: the publication of his book. From the complaint (which is the government's side), he was supposed to get pre-authorization for publication and didn't. Therefore, the money from the book goes to the USG instead of Snowden.


Yes, but (frustratingly) it is not illegal within the US jurisdiction for the US government to violate a non-US person's privacy. The US constitution's bill of rights only protects americans.

Hence why the key point is that the US intelligence agencies spied on US citizens without warrants. I agree that they shouldn't be spying on anyone in this way (get a warrant!), but spying on US citizens in this way is super duper illegal, and therefore most clearly shows that the program itself was illegal.


The US constitution's bill of rights only protects americans.

In general, this is false. EVERYONE gets the right to free speech, the right to an attorney and a trial by jury, etc. I wouldn't expect anyone to say that it's OK to take illegal immigrants as slaves because they're not covered by the 13th Amendment.

That said, I do see that legal opinions about Snowden's revelations say that the surveillance is OK for non-USAns. I don't understand how this is supposed to be.


Everyone on US soil. It's definitely a radical, non-consensus opinion that the US bill of rights protects non-Americans outside the USA.


Snowden exposed bulk metadata collection that was greenlit by the FISA court. They were granted explicit legal authority before doing it, so there's zero chance of anyone being criminally liable.

The more egregious spying program during the Bush administration (Stellar Wind) was exposed years earlier by the NY Times.


Perhaps it would be better to use the word "unconstitutional".


Nobody in this discussion seems to have mentioned the word "advance". Snowden has already been paid for this book, and the advance will have been negotiated with the expectation that it will be difficult to pay any additional royalties.

Has Snowden's contract with the publisher been exhibited yet? It'll be interesting to see if there's anything funny in there.


Curiously since Snowden is a US citizen he’ll have to file & pay taxes on that income.


Or what? The US will send him to jail?


Can one of the internet lawyers out there explain why this is a civil lawsuit, and not a criminal lawsuit?

I'd think that if he committed an actual crime, it would be a criminal suit. I thought civil suits were for people trying to get money out of each other.

Or is this like how the feds couldn't get Al Capone for murder so they put him away for tax evasion?


There is already a separate criminal suit; this one is just trying to prevent him from profiting from his book, due to it (allegedly) containing intelligence info and violating his NDA.

From the link: "This lawsuit is separate from the criminal charges brought against Snowden for his alleged disclosures of classified information. This lawsuit is a civil action, and based solely on Snowden’s failure to comply with the clear pre-publication review obligations included in his signed non-disclosure agreements. "


If I buy the book, does that make me a criminal accessory? Or guilty of the receipt of stolen property (information)?


"The United States’ lawsuit does not seek to stop or restrict the publication or distribution of Permanent Record."

So presumably not.


No. Classified Info laws only apply to people who are authorized to have that info in the first place. This is why the US went after Snowden but not the journalists he worked with, as they broke no laws.

You also do not have an NDA with the government (I assume) and so owe them nothing but taxes.


> Or is this like how the feds couldn't get Al Capone for murder so they put him away for tax evasion?

No, both of those were crimes. They just incarcerated him on the one with the easiest case to convict.

Civil cases are often contractual cases. He had access to confidential information; they are essentially suing him for violating an NDA.


I especially like the fact that he can’t fly back to the US since he has no passport, but at the same time he is being prosecuted. It’s been so long, why even care? Who is running the show on this?


A criminal charge has no effect as he can't actually be brought back for trial and can't be tried in his absence.

If you sue someone, you can serve their intermediaries (his bank or publisher etc). So then the case can proceed. By getting a judgement they can seize US book revenues.

Its a pretty cheap move imho but I think that's the logic: if you can't do something at least look like you're doing something.


Because no criminal charge that rests solely upon openly publishing facts would ever stand up against the 1st Amendment.

Before any cleared individual ever touches or sees classified materials, they sign an NDA that establishes personal responsibility for protecting classified material. This is separate and distinct from the criminal espionage and treason consequences, but they do their best to make you think they are closely tied with the training materials.

As it happens, openly publishing as a protected right is hugely different from the criminal act of selling or gifting secrets to a foreign adversary, so a civil suit is all they can do.

And given that it is a civil suit, Snowden would have a reasonable shot at an "unclean hands" defense, if the judges were truly impartial and objective.


Sadly, they will attempt to make an example out of Snowden to discourage anyone from EVER doing something like this again.


The thing people seem unable to do with Snowden is separate the intention of his actions with the impact. I have no doubt he had the right intentions. Informing the people of the gross violations of civil liberties is a noble endeavor.

However, the impact that it had and the manner in which he conducted it, and the channels he went through to do so had a dramatically negative impact on sources and methods. Real people in the field were put into actual danger as a direct result of his actions. US National Security was hampered as a result. The biggest rejoicers were arguably our two biggest threats: Russia, whom we have been fighting a proxy war in the middle east for ages now, and China and that alone should tell you something. People who believe they are doing the right thing for their country were endangered, and my country's ability to keep us safe was hampered.

Surely there was a way to let the appropriate people in charge know about these programs, and maybe had a greater possibility of enacting actual change, because as it stands right now, while we are more informed as a people, exactly zilch has changed since 2013.


You can say this about any whistle-blowing activity, really. In the short-run it's always better for stability to cover-up your crimes. I think there are 2 straightforward rebuttals to this:

1. It seem strange that you're blaming the whistleblower, and not the people who violated the constitution to begin with. This is (vaguely) like blaming the dentist for the pain of a root canal instead of your poor eating & hygiene.

2. In the long run, trust in its institutions is critical to US power. The US was a good place to do business specifically because you could trust that you would be treated fairly, speak freely, and the government shouldn't be spying on you. If these institutions stop working, the trust will eventually go away.

You suggest there could be some sort of "other way" that would actually enact change, that way is US citizens voting for lawmakers who care about this.


The fact that zilch has changed has nothing to do with him. We are the electorate and if people really gave a damn about it, which most people don't because this is too abstract and far from concrete for them, then things would have changed or at least started to. The biggest thing that's been done is Apple advertising privacy as a feature in their product releases.

Please show some evidence as to why you think the country's ability to keep us safe was hampered? Has the government shown anywhere that an attack that could have been thwarted wasn't?

People need to get off their high horse. Mass collection of data isn't a method of security. It's a method that's used to try and make up for lack of it. Let's collect all the shit we can and hope to find a needle in a haystack. We have more serious issues to take care of in this country. Sick people are walking around toting assault weapons and IMHO a large swath of the population is suffering from some sort of mental illness which is being allowed to rage unchecked.


Surely there was a way to let the appropriate people in charge know about these programs

They've been informed. Perhaps not in a way that you or they might approve of, but they've certainly been informed, loudly and clearly.

Of course,

zilch has changed

It would be a mistake to assume that blowing the whistle quietly, politely, and up the chain of command, might have had better results. The only difference would be that the public would still be in the dark to this very day.


If whistleblowers weren’t so often targeted by the government in retaliation or to silence, your argument would have merit.


You should read the book... nobody was put in danger. Snowden is an American hero.


You should talk to an actual intelligence officer or two. I have, which is where I got that impression from.


You mean the people Snowden warned us about don't like him much?


That's like someone being stalked by a police officer being told to call the police


It's more along the lines of, and the maturity required to understand that, there are two sides to every story and the people on the "other side" are human beings, too, and in fact, not your enemy. Average Americans most of them, believe it or not. Chances are some of them have been your friend, neighbor, church member, frat bro/sorority sis, etc.


A lot of (or even most) members of totalitarian organisations are "average X", good neighbours, church members etc etc.

I'd suggest to read some Arendt.


The "other" side here is looking for an Orwellian dystopian society. They aren't nice people.


The "appropriate people in charge" were well aware of these programs


It's hard to buy the party line these days. The intelligence services come across as gigantic incompetent bureaucracies. They didn't prevent 9/11, concocted fake WMDs, thousand drone strikes later they are handing Afghanistan back to the Taliban, were fast asleep to the dangers of Fake news/Social Media issues and had no clue where Trump or Brexit came from. After all that why do you believe them?


This lawsuit is mostly about paragraph five of the NDA:

> 5. I hereby assign to the United States Government all royalties, remunerations, and emoluments that have resulted, will result or may result from any disclosure, publication, or revelation of classified information not consistent with the terms of this Agreement.

https://www.gsa.gov/forms-library/classified-information-non...

Download SF312-13.pdf.


Meanwhile a sitting US President can profit from royalties, remunerations, and emoluments that have resulted, will result or may result from foreigners and diplomats renting hotel rooms and golf courses owned (not divested) by same President and his immediate family.


I'd be really curious as to how closely Snowden's lawyered the book to not include any classified information, with this clause in mind.


Somehow I doubt the US government is after a few dollars from his book sales. It is more of a message to anyone trying to publish "unapproved" material in the future - don't do it or we will make your life hell.


This seems like targeted harassment. Are those NDA's even valid anymore?


IANAL, nor have I read the NDA's (I'm hoping they will be publicly released as part of discovery) but I doubt NDA's with either the NSA or CIA will have an expiry date.

A breach of contract on the plaintiff's side could but not necessarily will nullify the NDA.

The best outcome for Snowden I think would be if he can demonstrate a greater good, IE: that breaking this contract prevents a larger crime, that would be up to the court to decide.

I find it interesting to see that the DOJ is not trying to prevent publication, just trying to intercept financial gains based on the premise that he didn't submit copy for review. At this point they are not claiming that he is actually publishing any confidential material.

Somehow I doubt Snowden's main motivation for publishing this book is financial, so I don't know if this will hurt him much..


His NDA is exhibit A and his exit form is exhibit B. I downloaded them while using the RECAP extension and they are now available here https://www.courtlistener.com/docket/16206285/united-states-...


Having known other people who have worked for the NSA, they've had to clear any publications with them before publishing (eg, academic papers in a field related to their work, resumes describing work done at the NSA, etc).

My understanding is they're enforcable for the rest of your life.

I'd expect to see this if anybody published a book without clearance. It's only newsworthy because it's Snowden.


Indeed there is currently a very similar situation with another author: https://www.washingtonpost.com/outlook/a-look-inside-the-cia...


This all makes sense to me. I share your same expectations.

Now, I'd also expect Snowden to make sure he is not breaching those NDA's. Afaik, he is not one to make these types of mistakes. Looking forward to his response.


It doesn't matter how careful he pays attention to his NDAs. He's required to get approval before he publishes. No approval, no publication. Publish anyway, and you're in breach of contract, even if the content would have been approved in the fist place.


> Now, I'd also expect Snowden to make sure he is not breaching those NDA's.

You... you know who Snowden is, right?


> Are those NDA's even valid anymore?

Surely the NSA/CIA's NDAs are permanent?


Something that never made sense to me in the Snowden case is how any of this works in face of whistleblower protection laws in USA.

According to Wikipedia, the US offers these legal protections:

> Whistleblower protection laws and regulations guarantee freedom of speech for workers and contractors in certain situations. Whistleblowers are protected from retaliation for disclosure of information which the employee or applicant reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

But when Snowden blew the whistle on 3-letter agencies, all that goes out the window? Does the government not follow its own laws?


In Snowden's case, he was a contractor and the specific whistleblower law covering the NSA did not apply to him.


95% of what we think as "Federal workers" are in fact contractors.

Look no further than Accenture and similar. So sure, there's whistleblower laws. But they're in name only, with no real power for those that work with fed stuff in day to day operations.


That is so convenient, isn't it? The government don't need to follow the law which suppose to protect the whistleblowers.


It's more complicated than that, sadly.

A lot of contractors are small outfits that "won" contracts because the contract request was tailored for them. In the fed system, your max cap of what you can make wage-wise, is limited by Congress.

The way around that is not to get paid wages, but becoming a contractor that takes contracts at MUCH higher than the wages would ever be. So it becomes a form of its own version of corruption of "I want to hire and pay these people appropriately but im unable to legally so I'll create a contract only they can fulfill." But the corruption itself is rooted with price controls in Congress.

But one of the side effects is that they're "not working for the govt, but for the company" and the company is working for the govt. It also means no govt pension, or any of the perks for working directly for the govt. And well, contractors get none of the protections of reporting wrong-doing.


Plus there's policies and procedures that must be followed to be protected under the Whistleblower Protection Act. Skipping out of the country and accepting asylum with an adversarial foreign government while in possession of a crapton of stolen classified materials would definitely disqualify someone.


Which is ridiculous of course.


The problem with Snowden is that:

A. He did not try to whistleblow through any officials channels in the NSA, intelligence community, or Congress

B. He stole somewhere around 1.5 million documents, of which the vast majority had nothing to do with the programs he thought were illegal

The house intelligence committee report on Snowden actually concedes that he could have enjoyed whistleblower protection under the law at the time. One could make the argument that one should not have trusted those protections and Snowden decided the same. But that still doesn't explain why he stole so much classified material that was unrelated to his civil liberties concerns.


You're making the same old arguments that gets debunked over and over again.

https://www.theguardian.com/commentisfree/2016/sep/19/washin... https://twitter.com/Snowden/status/941723524175187969


Did Snowden go through any of the whistleblowing channels? No. I can see why he didn't, but fact is that he didn't.

Snowden didn't read all of the documents he stole, instead he relied on journalists to responsible when redacting things. So that alone means he would have no way of knowing how much natsec damage he did. Not to mention the fact that often times classified leaks help adversaries figure out other classified information by filling in the picture.

As far as damage to national security, it's always going to be difficult to assess, but there's no way the Guardian or any media outlet can definitively claim there wasn't damage because they don't have the whole picture. In the case of SIGINT, if your adversaries learn your offensive capabilities they are going to develop countermeasures. If they learn that you've detected their spying activities, they are going to move to new ground. If they learn key things about your communications security, they will be better equipped to exploit them.

Just this week a story came out about how Russian intelligence services penetrated FBI communication systems and were able to eavesdrop on FBI counterintelligence efforts. These are the types of things that get compromised with leaks.

Ultimately it would be very difficult for Snowden to mount an effective whistleblower defense based on his actions. I can understand why he didn't try to report through oversight channels (see William Binney and Thomas Drake) but the fact that he didn't drastically weakens his case on that front. Then the fact that he stole and divulged materials which he had not even read means it would be harder claim that his leak was solely related to illegal spying.


That Navy sailor that took pictures inside the sub and got court martialed should get to go free too. And, those FBI memos that Comey took home and then kept after he was fired shouldn't result in his prosecution, either. /s

You steal US Federal Government property, you're going to eventually go down.


None of the examples you have given is even remotely related to whistleblowing.


Maybe that's because the examples I gave and the original topic of discussion are related in that they deal with the theft of federal government property.


The real problem is that the NSA not only routinely ignores issues raised by whistleblowers, but actively retaliates against them for trying to blow the whistle on illicit activities.

https://www.theguardian.com/us-news/2016/may/22/how-pentagon...


Yes, that was what I was referring to when I said that one probably shouldn't have relied on those protections.

However, it doesn't change the fact that he stole a tremendous amount of classified material that had nothing to do with what he felt civil liberties issues. Also doesn't change the fact that the Russian government outright admitted that Snowden shared Intel with them (according to the house Intel committee report).

So even if he has a solid defense regarding prism and some of the other stuff he exposed, he doesn't really have any justification for the defense and foreign intelligence classified info he stole.


Do you have any credible evidence to back up your claims? It seems to me that you're spreading baseless accusations.

> he stole a tremendous amount of classified material that had nothing to do with what he felt civil liberties issues.

How could you possibly know this? The only people who had access to the full documents are just a handful of journalists.

> Also doesn't change the fact that the Russian government outright admitted that Snowden shared Intel with them (according to the house Intel committee report).

Again, any evidence besides some half-baked government PR? He didn't have any documents with him by the time he left HK.


Read from the HPSCI report here:

https://www.lawfareblog.com/hpsci-releases-full-snowden-repo...

> Again, any evidence besides some half-baked government PR? He didn't have any documents with him by the time he left HK.

What evidence do you have that he didn't? His public denials? Do you think someone in his position would have any reason to lie about such a thing?

But let's say he didn't take any materials with him to Russia. What was stopping Russia intelligence services from debriefing him?

Here is the quote from a member of Russian parliament (deputy chairman of the defense and security committee, Frants Klintsevich)

"Let's be frank," he says. "Snowden did share intelligence. This is what security services do," adds Klintsevich. "If there's a possibility to get information, they will get it."

That was in a NPR interview transcript: https://www.npr.org/2016/06/29/483890378/during-tenure-in-ru...

Maybe there's something missed in the translation there, but it seems pretty plainly stated there. And in the HPSCI report they claim ongoing contact with Russian intelligence services by Snowden. Now maybe they were just acting as chaperones for him and expected absolutely nothing in return. But that to me seems hard to believe.


Are you or have you ever been employed by a US intelligence agency?

You seem very skilled at subtly misleading with half-truths. We don't really know what unpublished documents Snowden took, and it is extremely naive to trust the state's allegations. The published info about defense and foreign intelligence was relevant to the American people because it demonstrated that NSA had been lying to congress and our allies. Unchecked violations of our alliances is a grave threat to national security.


I've never worked for the intel agencies but I've worked in other places in the USG.

You're right that we may never know what exactly Snowden took, that's always going to be the tough part about the public evaluating classified information cases. Sometimes you'll find other pieces of the puzzle years later if you're lucky.

Either way, you should take what senior intel officials say with a grain of salt, they're always going to be cagey and particular with language. But looking at the Snowden case there are a number of things that are red flags with his story.

Was the NSA performing illegal surveillance on Americans? Yes. Did Snowden expose information that had nothing to do with those programs? Even by his own admission yes. Did Snowden even read all of the documents he stole? No, again by his admission.

I don't think Snowden was a stone cold traitor, but I also think there are some things about his story that don't add up. The truth is probably somewhere in a gray area.


What are the biggest red flags or things that don't add up in your opinion?

I dug into his releases pretty deeply, but probably have missed quite a few of his public statements.


Snowden sacrificed his extremely lucrative career, his access and his ability to live in his own country to expose the illegal and unconstitutional conduct being carried out by the NSA. He put himself in extreme legal jeopardy to expose this illicit government activity and the lies of government officials like James Clapper, who perjured himself before the Senate when asked directly about these activities.

In direct contrast to Snowden and his unselfish, principled actions are people like you, who spread blatant falsehoods, such as your suggestion that Snowden gave the Russian government intel.

The Constitution is the highest law of the land. Those in government and in other official positions who have violated our Constitution are the real enemies of our country, not the people who expose their crimes. Sanctimonious babble about, "national security" does not excuse them, lessen or mitigate their crimes in any way. Hopefully the release of Snowden's book will rekindle interest in the unconstitutional, illegal surveillance that continues to be carried out in the name of, "national security" so those lawbreakers and criminals in the "intelligence community" can be put behind bars where they belong.

https://www.youtube.com/watch?v=QwiUVUJmGjs


> Snowden sacrificed his extremely lucrative career, his access and his ability to live in his own country to expose the illegal and unconstitutional conduct being carried out by the NSA. He put himself in extreme legal jeopardy to expose this illicit government activity and the lies of government officials like James Clapper, who perjured himself before the Senate when asked directly about these activities.

Certainly. Never claimed otherwise.

> In direct contrast to Snowden and his unselfish, principled actions are people like you, who spread blatant falsehoods, such as your suggestion that Snowden gave the Russian government intel.

That's kinda making a massive leap to call someone selfish and unprincipled simply for pointing out what came out in a Congressional report. Some people think Snowden is a hero, some think he's a traitor, but I don't attack the character of people simply for having either view point.

Snowden clearly exposed programs that used dodgy interpretations of the law to justify illegal surveillance. But that doesn't mean that he didn't cause other collateral damage, it's all but certain he did. And by his own admission he didn't read the documents he handed over to journalists, so he couldn't have known the full impact of what he was leaking.

So while he can be lauded for exposing illegal surveillance, there are some problems with what he did and how he did, and some open questions about his actions in this affair.


In addition to other issues, it is not usually the exclusive decision of the whistleblower whether their disclosure qualifies.


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