Edward Snowden’s revelations about the extent of the US National Security Agency (NSA)’s snooping are the proverbial gift that keeps on giving. The latest round had left both American and British intelligence agencies red-faced. And little wonder; the fig-leaf of national security has just about withered and blown away when the surveillance targets have come to include German government buildings, the EU’s competition commissioner, the heads of NGOs that provide humanitarian and financial help to Africa and Israeli politicians including the Prime Minister. But while there have been the usual condemnations and outraged sounds by the spied upon, the real push back against NSA overreach in general has occurred at about the same time within the US itself. Washington, DC federal judge Richard Leon has ruled that the bulk collection of American citizens’ telephone records by the NSA probably violates the US Constitution. And simultaneously, a commission appointed by US President Barack Obama in the wake of Snowden’s first leaks in August has delivered a report that has found that the NSA’s programme was both dangerous and unnecessary.
This comes with the caveat that both findings apply only to the NSA’s activities as they apply to domestic surveillance, of course. But they still have two important benefits. The first is that as a consequence of the commission’s report, Obama is likely to reform how exactly the NSA goes about collecting and storing phone and Internet data. Technically, this might come into play only when the intended targets are American citizens, but the borderless nature of digital communications means that the ripple effect might be of benefit to people in other countries as well.
Secondly, Leon’s and the commission’s findings both get to the heart of the matter by speaking about the nature of digital communications today and what can be considered a reasonable expectation of privacy on an individual’s part. In this context, NSA apologists have insisted that metadata is fair game since it does not truly reveal anything vital about the individual. It’s a line Indian authorities repeated when brushing aside concerns about the NSA’s activities infringing on the rights of Indian citizens. Leon has shredded this flimsy defence, pointing out that with the proliferation of such communication we see today, and its evolving nature, it is entirely possible to build a comprehensive image of an individual from just such data. And he has attacked the surveillance on grounds of necessity as well, stating that collecting metadata has not, in fact, contributed to averting a single terrorist attack. The commission, after interviewing various NSA officials, concurs, stating, “Our review suggests that the information contributed to terrorist investigations by the use of Section 215 telephony metadata was not essential to preventing attacks”.
These are important contributions to the evolving global dialogue on citizens’ rights as they pertain to digital data, and the tension between security imperatives and those rights. The US might be the most capable state when it comes to surveillance, but it would be naïve to believe that it is the only one doing so. Indian police and security agencies’ records when it comes to tapping phones are far from stellar. The US establishment might still consider Snowden a traitor, but his revelations are starting to show their full worth.