The Dilemma of Snowden’s leak

Should Europe care about the Snowden’s leak? Absolutely, but don’t expect too much from the EU and its Member States to fully defend privacy rights of European citizens.

Earlier this week, Edward Snowden, a former technical assistant for the CIA and current employee of the defence contractor Booz Allen Hamilton contracted by the NSA, leaked top-secret documents to the Guardian and the Washington Post.

Here is the video of his interview by the Guardian, wherein Snowden talks about his motive to reveal wide-ranging secret court order to collect phone calls of Verizon’s customers and the large NSA intelligence Prism program collecting data from the biggest web companies:

These leaks reveal information about the U.S. surveillance programs snooping on individuals throughout the globe. The gathering of these metadata – calls, location of phone, time of call and so on – by the NSA has been at the heart of the controversy. Snowden as well revealed the existence of a secret program, Prism, allowing the U.S. government to collect a wide range of data thanks to the collaboration of powerful multinational corporations like Microsoft, Google, Yahoo, Facebook, YouTube, Skype, Apple and others. Below are three slides, from a top-secret presentation, published by the Washington Post illustrating and describing the Prism program.

In many ways, one can see some common ground with the Pentagon Papers leaked to the New York Times in 1971 by Daniel Ellsberg. The Pentagon Papers were a large study ordered by McNamara, then Secretary of Defense. It was a top-secret research on the U.S.-Vietnam relations from 1945-67 conducted by the RAND Corporation, wherein Mr. Ellsberg worked as a high level analyst. This top-secret study demonstrated that the American public had been clearly misguided and lied to by the U.S. government on the true reasons behind the political and military involvement of the U.S. in Vietnam since the Truman Administration. From a moral standpoint, informing the public on the real motive of the government, one can see the connection between the Pentagon Papers and the Snowden’s leak.

The Snowden’s leak raises important questions and underlines a fundamental dilemma that the West has yet to face. In the age of global terrorism, as the perceived greatest threat to Western countries, to what extent are citizens willing to have their liberties infringed? Where does the power of government start and end in order to keep its citizens secure? Since the 1970s, Ellsberg has warned about the risks of an over-powerful government in the post-9/11 era when writing:

After 9/11, the principal “liberty” that many Americans seemed to prize most was the “freedom” to go to the shopping mall without having to fear ‘terrorists.’ That attitude gave impetus to the construction of a police-state framework that could crush all the other liberties and freedoms.

Ellsberg goes even further in his commentary published by the Guardian when comparing the U.S. government as the United Stasi of America, making a reference to the all mighty East German secret police during the Cold War. He argues that these leaks are in fact the most important in American history.

As it was the case during the 1970s with the Pentagon Papers, the Congress did not react/act. Will it be the same with the Snowden’s leak? Where has the American public opinion been? Gideon Rachman of the FT answered the later question in his latest column, when writing: “The reason that I remain relatively relaxed about the thought that somebody could read my emails and scan my Google searches is not because I have ‘nothing to hide.’ It is because, so far, I have never seen or felt any real-world consequences from this theoretical vulnerability. Nor has anyone I know.” Such argument can be directly confirmed by the latest report by the Pew Research Center. According to the Pew, Americans are willing to trade privacy for security and a majority agree with the U.S. government:

Even though most of the debate has been focusing on the person of Snowden and the role/reaction of the U.S. government, Europe is directly concerned by the massive U.S. snooping on European citizens. So how has Europe reacted to this crisis so far? As expressed by the Guardian, “Officials in European capitals demanded immediate answers from their U.S. counterparts and denounced the practice of secretly gathering digital information on Europeans as unacceptable, illegal and a serious violation of basic rights.”

In the case of Britain, it is not surprising to see London undermining the consequences of Snowden’s leak considering its position of security and structure of Britain as a police-state. The 2005 London bombing was a vector towards increasing security at the expense of privacy. London, through its British foreign secretary, William Hague, has been defending the use of metadata gathering by U.S. intelligence agencies. He has been protecting the British intelligence agencies by claiming that Britain respects the law and play by the rules, even though the Guardian rejects such claim. Mr. Hague refused to expand on how Britain handled information offered by U.S. intelligence agencies.

However, other EU member states did not react the same way. In the case of Germany, with some of the strongest privacy laws in Europe, Berlin has expressed its unhappiness with the program. Germany is the EU member state under the greatest level of scrutiny by the NSA. As illustrated by the map below Germany figures as one of the countries the most surveilled, the color scheme ranges from green (least subjected to surveillance) through yellow and orange to red (most surveillance)

The press has released that German Chancellor Angela Merkel, up for reelection in the coming months, will be bringing up the question of NSA spying during the visit of President Obama next week. So far Paris has remained quiet with no reactions on the Prism program. It would not be surprising to see Paris involved in such program (even though it is only a wild guess). Nothing has transpired in the press about official French reactions.

Brussels has finally expressed its concerns over the massive U.S. intelligence snooping. Tonio Borg, EU Commissioner for Health and Consumer Affairs, told the European Parliament: “Programmes such as the so-called Prism and the laws on the basis of which such programmes are authorised potentially endanger the fundamental right to privacy and the data protection of EU citizens.”

Commissioner Reding, for justice, fundamental rights and citizenship, had already discussed the matter back in April with U.S. Attorney General Eric Holder when tackling the question of EU-U.S. data protection. And EU Commissioner for Home Affairs, Cecilia Malmström, is scheduled to meet with her American counterparts in Dublin on June 14. In simple words, the EU knew since at least April. The only openly critical figure so far has been Mr. Borg a rather small — in terms of influence and power — commissioner. The heavyweights like Reding and Malmström are playing it differently. So far Reding is on crisis-management mode, and Malmström on wait-and-see mode. It will be interesting to see how the President of the Commission and/or even the President of the Council react to the latest allegations. But so far the Commission is dodging the bullet by arguing that the protection of citizens’ privacy, when it comes to transmission and handling of data, is determined by national judges. In any case, the topic will be raised during the meeting of EU interior ministers on June 13 and at the European Parliament on June 19. We may see more condamnation of the Prism program from MEPs in the coming days.

In the long run, these leaks could be a serious blow to the coming Transatlantic Trade and Investment Partnership (TTIP), or what is known as Transatlantic Free Trade Agreement, as EU Member States and Institutions may want to protect basic civil liberties and privacy of their citizens. Even though I have limited hope in the rise of civil movements defending privacy in the U.S. following the release of the leaks (remember the re-election of Nixon in 1972 despite the release of the Pentagon Papers and see the results of the Pew research), the Transatlantic discussions around the TTIP may actually be the platform needed for a discussion on privacy on the cybersphere. Unfortunately, the debate will be framed around the question of national sovereignty rather than individual rights.

The Snowden’s leak gives us more questions than answers. The main questions emerging from these leaks are: Under what type of democracy are Western citizens willing to live in? Can ethics and moral be a part of reason of state? Is counter-terrorism the true reason behind these surveillances, or only a scapegoat allowing greater government surveillance à la Orwell?