But he's not really a whistleblower. This distinction must be understood in order to engage with critical thinking on how the United States should address the moral questions surrounding the NSA's activities. In addition, this kind of thinking will illuminate the lack of of government oversight by corporate news outlets.
There is almost nothing in Ed Snowden's revelations that is news to anyone that's been paying attention to the NSA since 2001. The Washington Post, the New York Times, ABC, NBC, CBS, CNN, and many other media outlets are engaging in journalistic kabuki, masquerading as surprise. We're being entertained by a media package that feels substantive, even though we're largely replaying events of the last 12 years.
Because, in truth, there is very little in what's being reported about the NSA's spying activities that's new.
If you need your memory refreshed, then here's a story in the New York Times in 2005 about the NSA spying domestically. If you truly weren't aware, then here's a link to an article on Raw Story with clips from NewsHour in 2006 talking about domestic spying. Here's a story that Frontline did called Spying on the Homefront in 2007. Here's James Bamford in 2008 talking about the NSA. Here's another story in 2008 talking about the NSA spying domestically, this time from the Wall Street Journal. Here's a story from later in 2008, talking about changes to the FISA laws that would allow domestic spying. And here's another story from Ars Technica, this time in 2009, reporting that the Foreign Intelligence Court of Review upheld the constitutionality of the NSA's activities.
Let's stop for a moment. You can disagree with the court's ruling in 2009. But, as of now, the ruling stands. What the NSA is doing is legal. Let me repeat that. What the NSA is doing is legal under US law. That doesn't mean I agree with it, but it's legal.
Everything, the listening, the internet intercepts, the laws that tech companies follow when issued FISA warrants, the FISC itself, all of it is legal. The information about these activities has been public for years. It just hasn't gotten attention. Even if PRISM didn't have a name in the public consciousness until a week ago, the capabilities that the NSA has that allow such a system to work have been public record for years.
In addition, this legal activity has been reported for years. Those links are a small snippet of the already available public information. Notice that there are no links to Infowars.com, or to Glenn Beck, Rush Limbaugh, or any conspiracy websites. Even if I think the Wall Street Journal's editorial page is batty, it's a respected publication. And there it was, in 2008, talking about the NSA and domestic spying.
The same arguments are appearing in the same channels in 2013. The NSA program is unconstitutional. The program is illegal. Of course, to determine legality, you need courts, lawyers, arguments, time, money, and above all, precedence. In addition, there's the simple fact those legal arguments have lost and continue to lose. This is why the law is settled; the courts haven't accepted any arguments that the NSA's programs are unconstitutional or illegal. The basis for this is a 1979 case, Smith v. Maryland, centered essentially on the right to privacy of phone records. Essentially, because the phone records actually belong to the phone company, there is no right to privacy. Start here with a recent recap from the Atlantic if you want to know more.
But since when are constitutional and legal synonymous with moral? Jim Crow was, at one time, constitutional and legal. As was slavery, suppression of women's voting rights, and more. Legal is not the same as moral.
And this leads us to the point. There's 2 questions we should all be asking. The first is a simple question, probably the most important.
Question 1: Is what the NSA is doing MORAL?
The country had this debate in 2001, 12 years ago, when the Patriot Act was passed. Progressives, civil libertarians and liberals argued vehemently that the Patriot Act would do more harm than good. That 'side' in the debate lost; the US decided to give up liberty in the name of security. We have been very secure since 2001.
Are we safer? Are we better off? Do we really need this possibility of intrusion into our private lives?
While you can't legislate morality, legislation itself has a moral component. And in this case, if you know the history of the NSA and the current domestic spying programs, you know that the legal authority that it relies upon stems from the Patriot Act and the Authorized Use of Military Force against Terrorists.
To put it simply, ending the legal framework for the NSA's current domestic spying activities is simple. Repeal the Patriot Act and the AUMF against Terrorists. There might be fallout from doing this, unintended consequences, disruption of other Federal programs that rely on that legal framework, outside of the NSA.
But if the desire is to simply get rid of the NSA program, doing so would be a simple act. Pretending otherwise is bloviation of the worst kind.
And you should ask yourself, why aren't the editorial pages of the country on fire with this question? Why the focus on regurgitating past news, on pretending that our media and government elites somehow didn't know about these programs?
That leads us to Question 2.
Question 2: Should we continue to allow corporate media and Congress to act surprised at what the NSA is doing, given how well documented their activities have been?
Historically, our country has relied on media to act as a watchdog against the 3 branches of our federal government. We call journalism the 4th estate. And it's in a sorry state these days. Consolidation. TV journalism is now punditry, less investigative reporting. Newspapers are closing. Journalists are underpaid, more so now than ever before, and over worked. Does anyone follow a beat anymore? Is there anyone writing for Time magazine that's been keeping up with all this public information? What about Salon.com?
If all this information is public, then how can Ed Snowden be a whistleblower? Perhaps, by calling him a whistleblower, or a traitor, both media elites and politicians can feign ignorance about the NSA's activities. Because if Ed Snowden isn't a whistleblower, if the bulk of what he's saying is already available to the public (if not well-reported or publicized), then what does that say about our media culture? About our politicians?
It says that the media's job of watching over the government is failing. It means that the Congress's job of representing their constituents interest isn't being done. It means that people who should know better won't be held to account for not doing their jobs.
And it means the Democracy is slipping out of our fingers.
Ed Snowden is a great package for a news outlet seeking clicks. He's young, like Aaron Swartz. He's the same age as a group of young people who probably weren't aware of what was happening in the news in 2005. He's a techie. He's a hacker. His story has all kinds of juicy hooks. He's supplying extra drama, by talking about his fear of assassination, by fleeing to Hong Kong, by having a girlfriend in Hawaii who's a stripper. All of these together make a great hook.
But if he's not a whistleblower, there is no story. So, if you want the hook for your story, if you want those clicks, if you want to pretend this is news, he has to be a whistleblower. If you don't want to admit that all the information you have is public, that you aren't spending money on investigative reporters, that you don't have a Woodward or a Bernstein on your staff, that all you're doing is regurgitating what the other guy is talking about, because your overworked editors and underpaid reporters can't even look in the archives of your own publications for news on this story, then you have to pretend this information is all new.
If you don't want your Congressional constituents asking thoughtful questions like, "Why didn't you know about this, when you voted on this law in 2001?" then you have to pretend to be surprised by what you're reading in the news. That same news that is also pretending to be surprised.
Don't be fooled.
Ed Snowden is not a whistleblower. He's a media package. And the story is still about him. If it remains about him, if the story doesn't pivot to the media's failure to publicize this story without a sexy package, if we pretend that it isn't as simple as repealing the Patriot Act and the AUMF against Terrorists to stop this activity, if we don't switch to the real debate about the morality of these programs, then we're likely to repeat history.
And that means, by the end of the summer, roughly 2 and a half months from now, this story goes away. As interest in Ed Snowden wains, in the current context, so too will interest in the story wain. It took roughly 3 months for stories about Aaron Swartz to disappear from the media. That's probably the shelf-life of our latest young hacker in the news.
I hope I'm wrong.