Letting the Air Out

The NSA and the rest of our surveillance state apparatus is shrouded in secrecy. As captured in Frank Pasquale’s superb forthcoming book, governmental surveillance is a black box. Gag orders prevent Internet companies from talking about their participation in PRISM; nearly everything revealing is classified; the Executive Branch is telling us half truths or no truths. To counter massive governmental overreach, Bradley Manning, Edward Snowden, and others have exposed some sunlight on our surveillance state. That sunlight isn’t coming from those who are betraying the country, but those who are trying to save it, at least that’s what many registered voters think. According to a Quinnipiac poll released today, American voters say “55 – 34 percent” that NSA consultant Edward Snowden is a “whistleblower rather than a traitor.” According to the assistant director of the Quinnipiac University Polling Institute, “Most American voters think positively of Edward Snowden,” at least they did before he accepted asylum in Russia. From July 28 to July 31, 1,468 registered voters were surveyed on the phone. These sorts of leaks seem inevitable, at least culturally given our so-called commitment to openness and transparency. The leakers/whistleblowers are trying to nudge the Executive Branch to honor its commitments to the Fourth Amendment, the sentiments of the Church Report, and the Administration’s 2009 Openness and Transparency memo. Let’s see if letting the air out moves us closer to the kind of country we say we are.

H/T: Yale ISP’s Christina Spiesel for the Quinnipiac Poll

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5 Responses

  1. Orin Kerr says:

    Danielle, isn’t the Quinnipiac poll asking a very odd question? As I understand the poll, it asked whether Snowden is a whistleblower or a traitor. But a traitor is not just a bad person. Generally, a traitor is someone who has committed treason — that is, someone who is is intending to help the enemy in order to hurt the country. Obviously, there are lots of ways to think negatively of Snowden without thinking he is a traitor. You could conclude that he is a criminal for releasing the documents, worthy of severe punishment for risking grave harms to national security, and very naive for thinking that this would not hurt the country — all without thinking that he is actually a traitor. Given that, I ‘m not sure the Quinnipiac poll is telling us what you suggest it is telling us.

    As for Snowden “nudging the executive branch to honor its commitment to the Fourth Amendment,” I don’t think Snowden has revealed anything that violated the Fourth Amendment. Do you disagree? And if you disagree, do you base that disagreement on existing court doctrine or on normative theories of what the Fourth Amendment should mean?

  2. Danielle Citron says:

    Thanks for engaging and prompting me to harken to the piece, “The Right to Quantitative Privacy” (forthcoming Minnesota Law Review), that David Gray and I co-authored. Snowden revealed that the FISC passed on the bulk collection of phone records, the breadth and indiscriminate nature violates reasonable expectations of privacy guaranteed by the Fourth Amendment. In Jones, five Justices appeared ready to recognize a reasonable expectation of privacy from dragnet, indiscriminate surveillance. The concurring opinions defended the proposition that citizens have Fourth Amendment interests in substantial quantities of information about their public or shared activities, even if they lack a reasonable expectation of privacy in the constitutive particulars. Perhaps I will write a separate post to articulate our doctrinal and normative argument. Thanks for the prompt. I suppose we read the QP differently…

  3. Orin Kerr says:

    Thanks, Danielle. I disagree in this post (,and I respond to the “mosaic” theory argument specifically in Part II) http://www.volokh.com/2013/07/17/metadata-the-nsa-and-the-fourth-amendment-a-constitutional-analysis-of-collecting-and-querying-call-records-databases/

    I would also add an update to that post: The Fifth Circuit’s decision earlier this week on historical cell site data bolsters the analysis in Part 1.B. and Part II.1.

  4. AnonProf says:

    Why laud Snowden and Manning? These men are not simply whistleblowers. They did not simply reveal that the federal government is engaged in domestic surveillance. That might have been legitimate because it would have caused minimal damage. Rather they revealed top secret documents, operational protocols, and internal memos. If any security contractor or soldier could do the same, eventually someone opposed to nuclear weapons will take it in hand to reveal nuclear secrets. Manning is a low level soldier who scarcely understood the foreign policy, if he understood it at all. And Snowden showed his passion for free speech by gaining asylum in Putin’s repressive country, where Pussy Riot and other dissidents sit behind bars. These were simply self-willed men who individually caused enormous problems. Who knows what documents Snowden still possess and how much Russia and China will extract from it. These men are not heroes, and they deserve harsh military and criminal punishment.