But the agency would never do so publicly.

By Timothy H. Edgar
October 3, 2017

Edward Snowden’s decision in 2013 to leak secret documents about America’s mass surveillance programs did not end them completely. But the reforms adopted in the wake of his disclosures have strengthened not only Americans’ privacy, but the National Security Agency’s (NSA) ability to collect intelligence.

Make no mistake—these reforms would not have happened without a whistleblower like Snowden. From 2006 to 2013, I worked inside the surveillance state as a privacy official, first in the Office of the Director of National Intelligence and later at the White House under President Barack Obama. While I helped put the NSA’s programs on firmer legal ground and made some improvements in oversight, broader changes to protect privacy were elusive. Obama’s aides showed little interest in reforming mass surveillance until after I left, when the Snowden leaks forced their hands.

It was Snowden who forced the NSA to be more transparent, accountable, and protective of privacy. The NSA took painful steps to open up. It released thousands of pages of previously top-secret documents in a transparency drive intended to put the Snowden leaks in context. The head of the intelligence community now publishes an annual transparency report. Congress ended bulk collection of Americans’ telephone records after an outside review found it to be of marginal value.

More fundamentally, Snowden enlarged the way the U.S. government thinks about privacy. The Snowden documents outraged friendly governments and embarrassed U.S. technology companies in the global marketplace. In response, Obama issued new rules requiring the NSA to consider the privacy not only of Americans, but of everyone in the world. Despite President Donald Trump’s nationalist rhetoric, the new administration is sticking with these rules. Director of National Intelligence Dan Coats agrees that the rules protecting foreigners’ privacy in intelligence collection have helped to reassure European allies.

In fact, one of the biggest beneficiaries of the post-Snowden reforms has been the NSA itself. The system that Congress created to end the NSA’s bulk collection of telephone records from American companies has actually given the agency’s analysts access to data from more companies than before. The old bulk collection program was limited for reasons of secrecy, trust, and logistics to a few large providers. According the NSA’s top lawyer, this has given the agency access to “a greater volume of call records” than it had before—without the responsibility of storing the billions of irrelevant records it used to collect each day under the old program. It turns out that transparency and privacy protection go hand in hand with good intelligence.

Last year, former Attorney General Eric Holder offered qualified praise for Snowden. “We can certainly argue about the way in which Snowden did what he did, but I think he actually performed a public service by raising the debate that we engaged in and by the changes that we made,” he said. (He said in the same interview that what Snowden did was “inappropriate and illegal.”) Despite the dislike my old colleagues in the intelligence community have for Snowden, I have heard many of them privately express similar views.

Trump has inherited the most powerful apparatus for mass surveillance the world has ever seen. While the post-Snowden reforms are a good first step, we delude ourselves if we think they have made the NSA tyrant-proof. In Snowden’s first interview from Hong Kong, he warned against “turnkey tyranny.” One day, he said, “a new leader will be elected” and “they’ll flip the switch.”

It is important that this warning not be proved prophetic. This year, Congress will review the Foreign Intelligence Surveillance Act (FISA), in which Section 702 allows warrantless NSA surveillance of foreign targets who may be in contact with Americans. While the law has produced valuable intelligence, it requires additional reforms to protect privacy. Now more than ever, protecting civil liberties is a cause worth fighting for, not only for the surveillance state’s discontents but for the surveillance state itself.

Timothy H. Edgar is author of the book, Beyond Snowden: Privacy, Mass Surveillance, and the Struggle to Reform the NSA. He also serves as the academic director for law and policy in Brown University’s Executive Master in Cybersecurity program and a senior fellow at the Watson Institute for International and Public Affairs.

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