Joe Jordan

the geek of hearts

Tinker, Tailor, Whistle-blower, Spy

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John Kerry, and the US government in general, seem to be confused.

When someone is covertly passing State Secrets (details of defense systems, high value business transactions, etc) to another government or company, that’s spying. The information flow is very simple - it goes from one secret HQ to another, and the target isn’t supposed to know, at least initially. The information may then be announced to the world to embarrass the target, usually by the foreign government or company, or they may attack the target militarily using the information to their advantage; either way, the initial part of it, the bit where the information stayed secret, was the spying.

When the supposed spy overtly splatters your state secrets all over the international media, and when that evidence suggests a legitimate case that you broke the law, this is called whistle-blowing, not spying.

The difference is made clear in the US legislation against corporate spying; the information must be used to some competitor’s unique advantage - Here, since everyone knows the information, it cannot be leveraged against the target (except in public lawsuits, where entities are always subject to legitimate attacks.) I’m afraid a PR disaster for a government does not constitute an attack on a state, no matter how loudly you shout it.

But there is another condition for whistle-blowing, and that is the suggestion of wrongdoing. Here we need to get specific; Snowden released information about PRISM, which routinely records the metadata (i.e. the fact of) conversations between your citizens. The Fourth Amendment to the US constitution guards against “unreasonable searches,” which it’s easy to argue PRISM breaches. I’m confident it will be brought before the US Supreme Court before long, because that’s what you do with constitutional questions like this in the “land of the free”, isn’t it?

I’m astonished that the US Government used a legal loophole here to deny Mr Snowden his protections under US whistle-blower legislation - specifically, the argument that he was a contractor, not an employee! In any natural understanding of the case, a contractor is in the same position as an employee when it comes to discovering the wrongdoing of a company or government; as such, they should be recognised as equivalent in any fairly-drafted whistle-blower law.

Also, the case for espionage (or even treason) might be stronger if, as Secretary Kerry puts it, Snowden’s actions had put “American lives at risk”. However, I’m not sure it what version of reality it has. If they’re saying that speaking uncomfortable truths gives the terrorists recruiting ammunition or something, then this would be a way to charge anyone for criticising the government on truthful grounds! The idea of this becoming a crime is clearly also unconstitutional, this time under the First Amendment.

Schemes like PRISM will always pop up every now and again, as the confidence of Governments grow and shrink. As responsible digital citizens, we must make our displeasure about this kind of privacy invasion known, loudly and often. I encourage readers in the UK to donate to the Open Rights Group, and in the US to the Electronic Frontier Foundation, or to join their post-PRISM action in any way you can.

I’ll end with this Sam Seaborn quote from the West Wing, ironically tipped as the programme that predicted (and hastened) Obama’s election:

“It’s not just about abortion, it’s about the next 20 years. In the ’20s and ’30s it was the role of government. ’50s and ’60s it was civil rights. The next two decades are going to be privacy. I’m talking about the Internet. I’m talking about cell phones. I’m talking about health records and who’s gay and who’s not. And moreover, in a country born on the will to be free, what could be more fundamental than this?”

Sam Seaborn The West Wing (1999)