Friday, June 14, 2013

On Snowden Leaks

First let me discuss the facts about the Snowden leaks.

  1. Snowden was an employee of a private contractor.  He did not work directly for the government.
  2. Snowden had access to top secret information.  Specifically he ran computer programs that had the ability to obtain certain specific information about people's electronic communications, including american citizens.
  3. He leaked the existence of those programs to the press.
  4. He fled to Hong Kong
  5. He then publicly admitted what he had done.
  6. He claimed he did it because he had moral objections to the existence of that tracking abilitiy, believing it to be an immoral and unethical invasion of american citizen's privacy, that should be illegal.
  7. Some members of the government want him arrested for treason
  8. Some members of the government want to arrest the press for releasing that information.
I have not talked about this for a while because it is a complex issue.

First, let me talk about crime in general.   Intent, or the mental state of the criminal, is key to most crimes.

If you go to a car that looks like yours, put the key in, it works, and you drive off, then most people don't think you have committed a crime - even if it turns out to be someone else's car (car manufacturers re-use keys, so this can happen - it used to be common).

Similarly, the difference between:  Murder (tried to kill), manslaughter (tried to hurt, but killed), gross negligence (didn't care if he got hurt/died so did not take precautions), and an accident (took reasonable precautions but he died anyway)  are all about intent.

Mr. Snowden's actions clearly indicate he was attempting to be a whistleblower, not a traitor.

  1. He leaked to the press, not to a foregin nation or terrorist organization
  2. He publicly admitted responsibility, risking jail time
  3. He only released the information about what the government was doing.  He with-held sensitive specific information, instead of releasing everything he had access to.
This brings us to the first question:

Should it matter what he was trying to be?  That is, should we judge him by the results alone, or take into account his intent/motive?

Yes it does matter.   By giving a reduced/no punishment for whistle-blowers as opposed to traitors, we as a government and a culture gain the following:
  • Incentive for whistleblowers as opposed to simply spying for foreign powers.  (leaking to the press rather than a foreign organization, admitting your actions)  We as a nation are much better off if we know what they know, rather than being left in the dark about them knowing our secrets.   It also saves us money in the investigation, prevents innocent people from being targeted, and allows us to fire him immediately (which we did), as opposed to leaving a spy in our midst.
  • Incentives for whistle-blowers to report actual crimes (even if you don't think Snowden was a whistle-blower.   By treating people trying to be whilstle-blowers better than traitors, we encourage people to be whistle-blowers, as opposed to terrifying them into submission with possible false claims of treason.  
  • The knowledge that whistlblowing is legal/punished less than treason also encourages us to TRUST the government.
These are all valuable qualities that governments can not buy except by treating people trying to be whistleblowers different than regular traitors that do it for money.

The technical definition of treason says either "wages war against the US, adheres to enemy, giving them aid or comfort".  Snowden clearly did not intend to do any of those things.  He should not be treated as a traitor, if for no other reason than to encourage other people considering revealing top secret information to leak it to the press and publicly admit their guilt as opposed to leaking to China and keeping their identity secret.

Next up, did he do it by mistake?

Second question:

Was he really a whistle-blower, or just a traitor?

Polls show that Americans have mixed views on Snowden.  The numbers are all between 40% and 60% approval dissaproval.

It doesn't matter.  You see, you don't convict someone of a crime if 40% of people think he's innocent.

This is America.  If there is reasonable doubt, you go free.   40% thinking he is a patriot is reasonable doubt.

It's too close a call to send a guy to jail for something many of us consider to be a patriotic act. 

We don't even need to know if he actually was a whistle-blower.  We just need to ask does a reasonable person have reasonable doubts about his actions?   At least forty percent of our population does.   Therefore he is innocent.

More about this later (see the last issue).

This brings us to the third question:

Should the NSA be contracting our 'suspect' work to private industry, as opposed to doing it in hourse?

This answer is a clear NO.  This is a horrendous mistake on the part of our government.  Even assuming the electronic surveillaince in question is legal and appropriate, it should in NO way be done by private industry.

We don't let military contractors operate nuclear weapons.  The weapons in question are too powerful and too dangerous.  They may build them and even maintain them, but we insist they hand them over to the US government and we guard and operate them.

You don't let private contractors do the work that has extreme issues.   We don't let them control our nuclear issues and we certainly should not let private contractors spy on American citizens. 

What's appropriate for the US government to do is not always appropriate for contractors to do.

Even assuming the espionage in question is appropriate for the US to do, it can not in any way be appropriate for us to pay private contractors to do.

Should the electronic surveillance in question be legal?

To answer this question, lets start out discussing what should be happening.

I expect our government agencies to be MORE concerned about security than our privacy.  They should be trying to push up as close as possible to the wall of what is legal.  It is not their job to safeguard our privacy, it is their job to safeguard our country.

If they are not taking risks and getting close to the edge of what is legal, then they are failing.

Traditionally the 'movie' traitors do something like the following:

  • Reveal technical secrets on how to make top secret devices
  • Reveal top secret names of people who operate in secret and  would be at risk if their identities become known.
  • Reveal top secret locations that cold be targeted by enemies.
  • Reveal specific military plans currently being executed, allowing the enemy to counter-act them.

He did none of these things.  Instead he revealed the current practices of the USA, not it's current plans, nor even the possible capabilities (just because Snowden couldn't listen to your phone calls doesn't mean no one else working for the US government can't)

They claim that by maintaining secrecy of our current practices, they can make it harder for the bad guys to counter them.  Note, our capabilities keep increasing, so the bad guys still have to take more precautions than just avoid what they know we used to do.

There is a technical term for this type of secrecy:  "Security through Obscurity"  If your opponent does not know how you do things, it makes it harder for them to defeat your efforts.   But if you check the wikipedia page I linked to you can instantly see what a bad reputation Security through Obscurity has.

Honestly, the food industry wanted to do a similar thing.  We laughed and told them NO.  We required them to list all the ingredients, if not the proportions.    They clearly have an interest in preventing their competitors from knowing what they put into their food.   Why didn't we let them keep their ingredients simple?   Because our personal interest in knowing what we are consuming is more important.

Similarly, our personal interest in knowing what information the government is gathering on us FAR exceeds any minor increased efficiency the government gains by having the terrorists not know for certain some of the things the government is doing.

Especially when a large portion (over 40%) consider the government's actions to be questionable, if not innapropriate.

If your actions are close to the wall between ethical spying and unethical spying, then you have to accept the fact that the public will get to examine at least the actions that are closest to the wall, if not the ones far from it.

You want security through obscurity?  Then do your stuff away from the wall.  Not right up next to it.

The NSA leak did damage security, the same way requiring food companies to list their ingredients damaged their profits.   That is, it damaged security a tiny, insignificant amount, and gave the country a massive amount of information that we desperately needed.

It is our job to determine whether your security measures are worth the effort.   Therefore you must reveal the most questionable security methods you use to the public.  If you want to keep something secret, then you create a public, more invasive 'throw away'  method and see how the public responds to you admitting you do that.  If they object, then you cancel the 'throw away' method and then reveal the one you wish you could keep secret and hope they accept it.

You definitely should not under any circumstances, keep your most invasive privacy violating security methods secret.  

Because the damage that your most privacy violating methods do the country will always be greater than the damage you are protecting.   If only in  destroying the people's trust in the government and creating a climate of distrust.


Snowden may not be a hero, but he is definitely NOT a traitor.  The NSA has clearly made some bad decisions - having private contractors spy on American Citizens???? Shame on you for stupidity, let alone privacy violations

We need to slap the NSA down and have them re-think their strategies. 

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