Three years ago, Edward Snowden’s leaks sent shockwaves through the U.S. intelligence services, disclosing information about surveillance programs and foreign intelligence operations and sparking a global conversation about the balance between national security and the privacy of citizens.
The revelations brought some aspects of the intelligence community out of the dark and accelerated the debate on encryption. At the same time, they also presented an opportunity to obscure and misrepresent U.S. surveillance activities, a number of top former intelligence officials told The Cipher Brief.
For privacy advocates, the revelations set the stage for massive government surveillance reform — something that has not come to fruition. Three years on, supporters say, the disclosures need to spur more substantive policy reforms.
In the second of our two-part series, we fact check what many believe are the misconceptions that continue to swirl around about the information leaked by Snowden.
For General Michael Hayden, former CIA director from 2006-09 and NSA director from 1999-2005, there are a number of misconceptions — which he dubbed “urban legends, aka urban lies” — in the public sphere about the Snowden leaks that still need to be fact-checked, three years on.
#1: Metadata
Number one, he said, is that the metadata program is collecting just that: metadata. It includes information that would typically appear on a phone bill, such as the number dialed, time of the call, and duration—not the content of any call.
“You still have people on national TV who say, ‘And then if NSA is interested, they can click on that number and get the content of the call.’ Now I defy you to click on your phone bill and hear what you said, which is fundamentally what the metadata is. So that’s just one solid fact,” Hayden said.
#2: An Intelligence Agency “Gone Rogue”
The “going rogue urban legend” of the NSA running amuck demands a fact-check by members of the media and the American public, according to Rhea Siers, former deputy associate director for policy at the NSA.
“Among the screaming headlines and pundits, it’s amazing to me how few questions were asked about the role of Congress and the White House in authorizing the program and settling some of the rules of this program,” she said.
In much of the coverage of the disclosures, Siers said it seemed Snowden’s supporters wanted to depict the people working in the intelligence community “as hitting a button and out popped data on U.S. citizens and other people.”
“It’s as if none of them ever read the reams of legal requirements and oversight procedures,” said Siers, now scholar in residence at the George Washington University Center for Cyber and Homeland Security. “There is very little understanding of how the data is actually collected and then touched when an analyst thinks they might have a need for it. There’s no context if you just print the PowerPoint.”
“Some of the people who are the biggest critics of this activity, they don’t want intelligence activity at all,” she said. “They live in a fantasy world and no one is going to call them on it.”
#3: Snowden’s Motivations
The focus on foreign intelligence gathering, rather than keeping a dedicated spotlight on issues such as privacy or human rights, has also left some of the former intelligence community officials unconvinced of Snowden’s claims that he was driven to leak the information due to concerns over privacy and ensuring government legitimacy by informing citizens of its widespread surveillance activities.
“If we are to have a democracy, if we are to be partner to that government rather than subject to it, we must know at least the broad powers and privileges that the government is claiming. We must know both what they are doing in our name and what they are doing against us,” Snowden said at a University of Arizona speech this April.
But ex-members of the intelligence community continue to question that premise given behind the leaks. Robert Eatinger, former senior deputy general counsel at the CIA, noted that it is apparent “Snowden illegally removed information unrelated to the privacy and civil liberties interests of Americans or of private citizens around the world.”
“One of Snowden’s early document releases purported to reveal U.S. efforts to monitor computers in China, and some of his later releases reportedly pertained [to] efforts to monitor foreign government officials,” he said. “The files Snowden removed and has yet to publish or reveal are thus likely to include ‘routine’ foreign intelligence operations against hostile, hard targets. Indeed, Snowden’s lengthy stay in Russia raises the question whether he stole files of appreciable interest to the Russian intelligence and security services and, if he did, he may already have disclosed some or all of them to the Russians in exchange for his extended asylum.”
And Siers said much of what was revealed from the files Snowden took related to information about foreign operations.
“Snowden and his sponsors made a choice to highlight foreign intelligence, and that’s part of that viewpoint in that quarter, that many of them, not all, don’t want any intelligence activity,” Siers said. “They think all intel is dirty. And if that’s your worldview, then you’re obviously going to promote it in certain ways.”
Requests for interviews to The Intercept for Glenn Greenwald, who broke the story while at The Guardian, and documentary producer Laura Poitras, were turned down. Barton Gellman, who broke the news for The Washington Post, declined to comment on the story. Meanwhile, the Freedom Foundation, where Snowden is on the board of directors, did not respond to requests for an interview with Snowden.
Beyond the initial outcry, after the leaks revealed the NSA had monitored the phones of dozens of world leaders, most observers say there has been little change in the U.S. intelligence community’s relationships with foreign services.
“What I witnessed was a good deal of commiseration. Many have had insider leaks too. I think they were surprised about the incredible amount of data taken and that it was taken from NSA, but it’s not going to scuttle our relationships and there’s no evidence it has,” Siers said.
Hayden, meanwhile, said the Snowden leaks did have an impact, “but it’s not because we may or may not have been listening to (German) Chancellor Merkel’s cell phone. That’s played out at the political level and sometimes at the political theater level.” In the wake of the disclosures, Hayden said, foreign intelligence services are likely warier about working with the U.S. because a question now lingers in their minds — “Can I trust the Americans to keep anything secret?”
“And so, if I’m a foreign intelligence chief, I’m a little careful working with the Americans,” Hayden said.
#4: Who NSA Targets
Another issue Hayden said he has with the perception of the NSA in the wake of the disclosures is that the agency is “indifferent with regard to foreign person privacy.” The NSA is “not indifferent, alright, but our targets are foreigners,” he said.
“From a lot of people, one of the arguments is NSA intercepts communications of people who have not been accused of any wrongdoing. That’s actually a nonsense statement. We don’t just listen to bad people. We listen to people who are not U.S. citizens who actually communicate information that if we got our hands on it would keep America more safe,” Hayden said.
#5: Snowden’s Choice of What to Reveal
For Eatinger, the view that Snowden was “surgical” in taking the materials he leaked to journalists is not accurate.
“The top thing I would want to fact-check in the public sphere is the perception spread by Snowden’s supporters that Snowden was somehow surgical in selecting the classified material to steal,” Eatinger said. “If the government knows from its investigation that was not the case, it should consider making that information public, if it could do so consistent with protecting intelligence and law enforcement interests.”
What’s next
A number of questions continue to swirl around Snowden and the leaks: What else may be revealed to the public? Will the 702 program be re-upped? And will Snowden ever return from Russia to stand trial and face the charges filed against him under the U.S. Espionage Act for revealing classified information? Or will he instead return to what he dubs a “fair trial” where he can raise the public interest defense?
Former Attorney General Eric Holder said in a recent interview that “we certainly argue about the way in which Snowden did what he did, but I think that he actually performed a public service by raising the debate that we engaged in and by the changes that we made.”
"Now I would say that doing what he did, and the way he did it, was inappropriate and illegal," he added, saying that Snowden should return to the U.S. and “see what he wants to do — go to trial, try to cut a deal. I think there has to be a consequence for what he has done.”
For Hayden, the noise from Snowden about a “fair trial” is just that.
“Henry David Thoreau is considered the deepest American thinker on this. And in Thoreau’s work he says civil disobedience gets its moral worth by the willingness to accept the consequences of your action. If you violate the law for a higher purpose, that act takes its moral dignity from your willingness to accept the consequences for violating the law. He has not,” Hayden said.
Meanwhile, privacy advocates and Snowden supporters are still hoping for more reform stemming from the disclosures. Electronic Frontier Foundation’s Rebecca Jeschke said the former NSA contractor provided “extensive documents confirming the massive surveillance of the Internet, as well as the lengths that the government went to hide this program.”
“However, the reform in the wake of Snowden documents has been lackluster. The USA Freedom Act made some small changes, but not nearly enough,” Jeschke said.
David Fidler, adjunct senior fellow for cybersecurity at the Council on Foreign Relations, said that beyond the USA Freedom Act, there has been little in the way of a direct response, in both law and policy, to the leaked information.
“The further we get away from that initial shock of the Snowden revelations and we start thinking about pieces of legislation put forward now, it’s more and more difficult to find the impact of Snowden’s disclosures,” he said. “Obviously, the USA Freedom Act was clearly a direct response, but we just haven’t seen any sort of consensus around Section 702.”
“And on an international level, we certainly haven’t seen any consensus emerge globally about any of the issues Snowden disclosed,” he added. “It’s difficult to see that the global mantle Snowden took on to champion human rights has really gone on anywhere in the matter of international law. Of course there are lots of conversations and debates, but it just hasn’t coalesced.”
So what’s next? Given that it’s an election year, Hayden offered some advice for the next president given the Snowden leaks: “Allow your intelligence services to collect foreign intelligence. Don’t be apologetic about it. Don’t be timid about it. And I would take a very hard look at, and probably recall, PDD-28, which is this massive bureaucratic overhang that’s been created to quote-unquote protect non-U.S. personal privacy. No one else is doing that. Why would we?”
As for the NSA, the agency still “produces the lion’s share of actionable intel for this country. That hasn’t changed at all,” Siers said. “Obviously damage was done,” she added, but there has been a great deal of confidence within the intelligence community that proactive steps have been taken to deal with the issues spurred by the Snowden leaks.
“I do think that NSA and the IC were a lot more resilient than some people thought they were,” she said. “And for some of Snowden’s supporters, that’s probably a disappointment.”
Mackenzie Weinger is a National Security Reporter at The Cipher Brief. Erica Evans contributed to this report.
