Modern field guide to security and privacy

Opinion: For the sake of privacy, pardon Snowden

While Edward Snowden's leaks damaged US national security, the disclosures also led to crucial surveillance reforms. A pardon would signal to the world the US has learned from its mistakes and respects internet freedom, privacy, and human rights.

Andrew Kelly/Reuters
American whistleblower Edward Snowden is seen on monitors as he delivers remarks via video link from Moscow to attendees at a discussion regarding an International Treaty on the Right to Privacy, Protection Against Improper Surveillance and Protection of Whistleblowers in Manhattan, New York September 24, 2015.

The American Civil Liberties Union and Amnesty International have launched a campaign calling for President Obama to pardon former National Security Agency contractor Edward Snowden.

I support that campaign, but not because I simply see Mr. Snowden as a hero and the NSA as a villain. I've served on both sides, first as the national security counsel for the ACLU and then later as the director of privacy and civil liberties for the White House National Security Staff during Mr. Obama's first term. 

The NSA's operations are vital to national security, but they need strong controls. Since 2013, our government has corrected its course regarding several surveillance policies that posed serious privacy risks to American citizens and people all around the world. Those reforms would not have happened without Snowden. 

Opponents of a pardon for Snowden have conceded that his decision to release top-secret government documents did result in changes to a domestic program of bulk collection of American telephone records, but they argue he should still serve time in jail for disclosing programs that revealed foreign spying operations.

That argument fails to account for the global dimensions of privacy. Current distinctions in the law between data collected inside the US and data collected abroad are relics from an era of analog telephones.

Americans' data is far more likely to be overseas now than when our surveillance laws were written in the 1970s. Still, the NSA's surveillance outside the US is still governed only by internal rules. The Snowden disclosures laid bare the risks to American privacy as the result of the NSA's overseas data collection practices.

But it's not only Americans' privacy that matters. We should consider the privacy of foreign citizens, too.

While Snowden took an oath to the US Constitution, not to the internet or some ideal of global ethics, the US has committed itself to a universal right to privacy. The International Covenant on Civil and Political Rights, which the US has ratified, provides a right against "arbitrary or unlawful interference" with anyone's "privacy, family, home or correspondence." Respect for the right of every human being to privacy is consistent with American values. 

Because of Snowden, the US government is taking that right more seriously. In 2014, Obama issued Presidential Policy Directive 28. It says: "All persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and all persons have legitimate privacy interests in the handling of their personal information."

By taking this stand, we not only raise the bar for our own intelligence agencies, we set a standard for our friends and allies – and we have greater standing to criticize our adversaries.

Still, Snowden's actions did cause real damage to national security. Some view him as unworthy of a pardon because he fled the country. Because I value our intelligence collection programs, I sympathize with those views. Still, a pardon could help the nation move forward. Just as President Ford pardoned President Nixon to get us past Watergate, a pardon may be the right decision for the nation even if the recipient does not personally deserve one. 

Perhaps the best historical precedent for a pardon of Snowden comes from our first president, George Washington.

President Washington is still the only commander-in-chief to personally lead troops into battle. He did so to suppress a rebellion by farmers in western Pennsylvania over a tax on whisky. Still, Washington pardoned the very rebels he fought on the battlefield, including convicted traitors who were sentenced to hang. This did not mean Washington approved of treason, nor did it create an incentive for armed insurrection. Washington had the judgment to know that reconciliation was more important than punishment. 

A Snowden pardon would be an olive branch from the surveillance state to its severest critics. Snowden's leak could perhaps best described as a rash act of rebellion in an effort to preserve digital privacy and save the internet – with collateral damage to legitimate intelligence operations. It's time to call a truce in this war. The US has vital interests around the world that require robust intelligence collection.

A pardon would show the world we can learn from our mistakes and reconcile our mass surveillance programs with respect for internet freedom, privacy, and human rights. 

Timothy Edgar was previously the director of privacy and civil liberties for the White House National Security Staff. He is currently the academic director for law and policy for Brown University's Executive Master in Cybersecurity program. Follow him on Twitter @Timothy_Edgar.

 

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